Juan Albino v. Lee Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN ROBERTO ALBINO,  No. 10-55702

Plaintiff-Appellant,

D.C. No.

v.

 2:08-cv-03790-

LEE BACA, Los Angeles County GAF-MLG

Sheriff; LOS ANGELES COUNTY,

OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

July 12, 2012—Pasadena, California

Filed September 21, 2012

Before: Ronald Lee Gilman,* Richard C. Tallman, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Dissent by Judge Gilman

*The Honorable Ronald Lee Gilman, Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.

11677

11680 ALBINO v. BACA

COUNSEL

Andrea R. St. Julian, San Diego, California, for the plaintiff-

appellant.

Christian E. Foy, Nagy and James C. Jardin (argued), Collins

Collins Muir + Stewart, LLP, South Pasadena, California, for

the defendant-appellee.

OPINION

N.R. Smith, Circuit Judge:

An inmate’s lack of awareness of a correctional institu-

tion’s grievance procedure does not make the administrative

remedy “unavailable” for purposes of the Prison Litigation

Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), unless the

inmate meets his or her burden of proving the grievance pro-

cedure to be unknowable. See Hilao v. Estate of Marcos, 103

F.3d 767, 778 n.5 (9th Cir. 1996); Goebert v. Lee Cnty., 510

ALBINO v. BACA 11681

F.3d 1312, 1322-24 (11th Cir. 2007). Because Albino has not

met his burden of proof, we affirm the district court’s grant

of summary judgment.

I. BACKGROUND

A. Facts

No party disputes that, during all relevant periods at issue

in this case, the Los Angeles County jails had a grievance pro-

cedure outlined in the Custody Division Manual § 5-

12/010.00. According to the grievance procedure, inmates

could file grievances (or complaints) regarding the conditions

of confinement, including grievances related to classifica-

tions. All inmates were permitted to submit a written com-

plaint; formal Inmate Complaint Forms were supplied to

facilitate complaint filings. Each housing unit in the jail was

required to have an adequate supply of Inmate Complaint

Forms, and inmates were required to have unrestricted access

to these forms. However, inmates were not required to use the

formal Inmate Complaint Forms; they could make a com-

plaint on any medium as long as it was written. Further, each

housing area also maintained a locked repository box accessi-

ble to inmates so that they could deposit their written com-

plaints unhindered.

On May 11, 2006, Juan Albino was arrested for rape and

incarcerated in the Los Angeles County Sheriff’s Depart-

ment’s main jail (“LASD Jail” or the “jail”). Upon arriving at

the LASD Jail, Albino was booked into the jail. As part of

that processing, jail staff determine the appropriate custody

and security level classification for inmates based on a num-

ber of factors, including the nature of their charge. After eval-

uation of the factors for Albino, especially Albino’s charge of

rape, Albino was assigned a custody and security level consis-

tent with placing him with the general inmate population.1

1

Albino was not charged under California Penal Code § 288 (lewd and

lascivious acts with a minor). Therefore, it is undisputed that Albino did

not require protective custody under Custody Division Manual

§ 5-02/060.00.

11682 ALBINO v. BACA

After he was assigned to the general population, Albino

alleges that he orally asked to be placed in protective custody.

However, sheriff’s deputies refused and instead assigned him

to the general population, consistent with the custody and

security level classification calculated during processing.

In June 2006, Albino claims that he was physically

assaulted and raped by fellow inmates after the inmates were

allegedly informed by deputies that Albino was a sex

offender. Albino was taken to the county hospital for treat-

ment of the injuries he sustained. After returning from the

hospital, Albino claims to have again orally asked for protec-

tive custody. Though his request was rejected, deputies told

Albino to contact his public defender for assistance (Albino

alleges specifically that the deputies stated, “it is your attor-

neys [sic] job to protect [you]”). However, without any writ-

ten request from Albino or his attorney, the jail relocated him

to another housing location for his safety.

Albino alleges that he was subsequently assaulted on two

separate occasions, once in July 2006 and once in September

2006. He acknowledges that he was taken to the jail clinic for

treatment after each of these incidents. Albino claims to have

orally asked for protective custody after each incident. While

the oral requests were denied, he was again relocated to a dif-

ferent housing unit for his safety after the July 2006 incident.

The record includes incident reports created by LASD Jail

personnel for the June and July incidents. The incident reports

indicate that Albino was rehoused for his safety, and the

reports provide no indication that Albino was dissatisfied with

this action. There is no evidence that Albino filed (or made

any effort to file) a written request for protective custody or

any sort of written complaint. Instead, Albino made only oral

requests for protective custody, and jail staff directed him to

talk to his public defender. No evidence suggests he ever

talked to his public defender about protective custody or com-

plaining of his situation. The incident reports also provide no

ALBINO v. BACA 11683

information concerning whether Albino was informed of the

grievance procedure. Therefore, in reviewing this motion, we

conclude that he was personally unaware of the grievance

procedure and he was not expressly informed of the LASD

Jail’s grievance procedure by the jail.

B. Procedural History

Albino filed suit against Los Angeles County, Sheriff Lee

Baca (“Baca”), and other John Doe defendants (collectively

“Defendants”) under 42 U.S.C. § 1983.2 Albino “allege[d]

that his Constitutional rights were violated by Defendants’

failure to protect him from other inmates and by Defendants’

deliberate indifference to his serious medical needs.” In addi-

tion, Albino claimed that Baca failed to adequately train and

supervise his deputies. Lastly, Albino alleged the state law

claims of intentional infliction of emotional distress and gross

negligence.

On August 7, 2009, Baca filed a motion for summary judg-

ment. Baca claimed that Albino’s lawsuit must be dismissed,

because Albino failed to exhaust his administrative remedies

as required by 42 U.S.C. § 1997e(a). Albino did not dispute

that he failed to file a written complaint. Instead, Albino

argued that the grievance procedure was “unavailable.” Spe-

cifically, Albino argued that (1) he was never given an orien-

tation by jail staff; (2) he never saw Custody Division Manual

§ 5-12/010.00, or, if he did, it was not in Spanish and he did

not understand what it was; (3) he has never spoken to anyone

who has heard of Custody Division Manual § 5-12/010.00; (4)

he has never seen or heard of a complaint form; (5) he never

noticed any complaint box and no one ever mentioned such

a box; and (6) he was locked down to such a degree that he

2

Baca is the only remaining named defendant. The district court granted

Defendant’s motion to dismiss the County of Los Angeles as a defendant,

D.C. Dkt. No. 26, and the magistrate judge denied a motion to add the

names of the John Doe defendants. Albino does not appeal these rulings.

11684 ALBINO v. BACA

never learned of the procedures. In essence, Albino “contend-

[ed] that even if a grievance procedure existed, the failure to

explicitly inform him of it obviates his need to exhaust,”

because the failure to inform him of the grievance procedure

(even though he never asked) rendered it unavailable.

The magistrate judge agreed with Baca and recommended

granting the motion for summary judgment. First, the magis-

trate judge found “no genuine issue of material fact as to the

existence of a grievance procedure at the jail, its accessibility

to inmates, or [Albino’s] failure to avail himself of it.” Specif-

ically, based on the evidence regarding the LASD Jail’s griev-

ance procedure, the magistrate judge found that the LASD Jail

“had an accessible administrative procedure for seeking

redress of grievances at the time of the incidents.”

Second, the magistrate judge assumed that Albino was not

aware of the grievance procedure and that the jail failed to

inform him of such procedure. The magistrate judge noted

that the Ninth Circuit has not yet addressed whether an

inmate’s lack of awareness of a jail’s grievance procedure and

a jail’s failure to inform an inmate together excuse exhaus-

tion. The magistrate judge also noted that “other Circuit

Courts of Appeals have held that neither a lack of awareness

of available grievance procedures nor a prison’s failure to

inform an inmate of them excuses his failure to exhaust.” The

magistrate judge then adopted the out-of-circuit approach.

Therefore, the magistrate judge concluded that Albino’s “lack

of awareness of jail grievance procedures does not excuse his

admitted failure to exhaust administrative remedies prior to

bringing suit.”3

3

In the magistrate judge’s report and recommendation, the magistrate

judge noted that if LASD Jail officials had actively prevented Albino from

availing himself of the jail grievance procedure, his failure to exhaust may

have been excused. Here, the record does not demonstrate (and the magis-

trate judge did not find) that Albino was prevented from availing himself

of the available procedures.

ALBINO v. BACA 11685

The district court accepted and adopted the magistrate

judge’s findings and recommendations in full. Hence, the dis-

trict court agreed that Albino had failed to exhaust his admin-

istrative remedies, because administrative remedies were

“available” within the meaning of 42 U.S.C. § 1997e(a), not-

withstanding Albino’s lack of awareness of the grievance pro-

cedure and LASD Jail’s failure to inform Albino of such a

procedure.

Albino timely filed this appeal.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo a district court’s decision to grant summary

judgment. Universal Health Servs., Inc. v. Thompson, 363

F.3d 1013, 1019 (9th Cir. 2004). On summary judgment

“[w]e must determine, viewing the evidence in the light most

favorable to the nonmoving party, whether there are any gen-

uine issues of material fact and whether the district court cor-

rectly applied the relevant substantive law.” Id. (quoting

EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742,

746 (9th Cir. 2003)) (internal quotation marks omitted).

Here, Baca asserted the affirmative defense of nonexhaus-

tion in his answer. Later, he filed a motion for summary judg-

ment, and the magistrate judge reviewed the case under the

summary judgment standard. However, this was error. “[W]e

have held that the failure to exhaust nonjudicial remedies that

are not jurisdictional [such as a prison’s grievance proce-

dures] should be treated as a matter in abatement, which is

subject to an unenumerated Rule 12(b) motion rather than a

motion for summary judgment.” Wyatt v. Terhune, 315 F.3d

1108, 1119 (9th Cir. 2003); accord Ritza v. Int’l Longshore-

men’s & Warehousemen’s Union, 837 F.2d 365, 368-69 (9th

Cir. 1988) (per curiam) (“[F]ailure to exhaust nonjudicial

remedies should be raised in a motion to dismiss, or be treated

as such if raised in a motion for summary judgment.”). There-

11686 ALBINO v. BACA

fore, the magistrate judge should have treated the summary

judgment motion as an unenumerated Rule 12(b) motion.4

If the magistrate judge had treated the motion for summary

judgment as an unenumerated Rule 12(b) motion, then our

review of the district court’s dismissal based on a failure to

exhaust would be de novo under a slightly different standard

than in a motion for summary judgment review. Sapp v. Kim-

brell, 623 F.3d 813, 821 (9th Cir. 2010). “[I]n deciding a

motion to dismiss for failure to exhaust, a [district] court may

‘look beyond the pleadings and decide disputed issues of

fact.’ ” Id. (quoting Wyatt, 315 F.3d at 1119-20). Thus, unlike

our review under a summary judgment standard, the district

court’s factual findings are reviewed for clear error. Id. A dis-

trict court’s factual findings are clearly erroneous if they are

illogical, implausible, or without support from inferences that

may be drawn from the record. United States v. Hinkson, 585

F.3d 1247, 1259-61 (9th Cir. 2009) (en banc).

Notwithstanding the magistrate judge’s error, because there

are no real factual disputes in this case, the net effect is that

the de novo standard is applied effectively the same under

either an unenumerated Rule 12(b) motion or a summary

judgment motion. In sum, the error does not affect the out-

come. See Sussman v. Am. Broad. Cos., 186 F.3d 1200, 1203

(9th Cir. 1999) (“We may affirm the district court on any

basis supported by the record.”).

4

Albino argues that the Ninth Circuit rule in Wyatt has been abrogated

or overruled by Jones v. Bock, 549 U.S. 199 (2007), so the district court’s

decision should be reviewed de novo under a summary judgment standard.

However, Sapp v. Kimbrell reaffirmed the validity of Wyatt. Sapp v. Kim-

brell, 623 F.3d 813, 821 (9th Cir. 2010) (“In deciding a motion to dismiss

for failure to exhaust, a court may ‘look beyond the pleadings and decide

disputed issues of fact.’ ” (quoting Wyatt, 315 F.3d at 1119-20)); see also

Jensen v. Knowles, 621 F. Supp. 2d 921, 925 (E.D. Cal. 2008) (explaining

why Jones v. Bock does not alter Wyatt). Therefore, Wyatt continues to be

the law of this Circuit.

ALBINO v. BACA 11687

III. DISCUSSION

A. General Requirement of Exhaustion Under the PLRA

and Its Purpose

Congress “placed a series of controls on prisoner suits, con-

straints designed to prevent sportive filings in federal court.”

Skinner v. Switzer, 131 S. Ct. 1289, 1299 (2011). One of these

constraints is the mandatory exhaustion of the correctional

facilities’ administrative remedies. See 42 U.S.C. § 1997e(a);

Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no ques-

tion that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.”).

Exhaustion serves two purposes. Woodford v. Ngo, 548

U.S. 81, 89 (2006).

First, exhaustion protects administrative agency

authority. Exhaustion gives an agency an opportu-

nity to correct its own mistakes with respect to the

programs it administers before it is haled into federal

court, and it discourages disregard of the agency’s

procedures.

Second, exhaustion promotes efficiency. Claims

generally can be resolved much more quickly and

economically in proceedings before an agency than

in litigation in federal court.

Id. (internal quotation marks, alteration, and citations omit-

ted).

[1] The PLRA mandates that “[n]o action shall be brought

with respect to prison conditions under section 1983 . . . , or

any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a) (emphasis added). Although “the PLRA’s exhaus-

11688 ALBINO v. BACA

tion requirement applies to all inmate suits about prison life,”

Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement

for exhaustion under the PLRA is not absolute. As explicitly

stated in the PLRA, “[t]he PLRA requires that an inmate

exhaust only those administrative remedies ‘as are avail-

able.’ ” Sapp, 623 F.3d at 822 (quoting 42 U.S.C. § 1997e(a));

see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.

2010) (“Remedies that rational inmates cannot be expected to

use are not capable of accomplishing their purposes and so are

not available.” (quoting Turner v. Burnside, 541 F.3d 1077,

1084 (11th Cir. 2008)) (internal quotation mark omitted)).

“We have recognized that the PLRA therefore does not

require exhaustion when circumstances render administrative

remedies ‘effectively unavailable.’ ” Sapp, 623 F.3d at 822

(citing Nunez, 591 F.3d at 1226); accord Brown v. Valoff, 422

F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust

‘available’ remedies persists as long as some remedy remains

‘available.’ Once that is no longer the case, then there are no

‘remedies . . . available,’ and the prisoner need not further

pursue the grievance.” (alteration in original)).

B. Burden of Proof

Exhaustion, under the PLRA, is an affirmative defense.

Jones, 549 U.S. at 216. Because exhaustion under the PLRA

is an affirmative defense, “[t]he burden of establishing nonex-

haustion therefore falls on defendants.” Wyatt, 315 F.3d at

1112; accord Brown, 422 F.3d at 936 (“[D]efendants have the

burden of raising and proving the absence of exhaustion.”)

(quoting Wyatt, 315 F.3d at 1119) (internal quotation marks

omitted). Once the defense meets its burden, the burden shifts

to the plaintiff to show that the administrative remedies were

unavailable. See Hilao, 103 F.3d at 778 n.5; Tuckel v. Grover,

660 F.3d 1249, 1254 (10th Cir. 2011) (“Once a defendant

proves that a plaintiff failed to exhaust, however, the onus

falls on the plaintiff to show that remedies were unavailable

. . . .”).

ALBINO v. BACA 11689

1. Defendant Met His Burden of Proving Administrative

Remedies Existed and Were Not Followed

A defendant’s burden of establishing an inmate’s failure to

exhaust is very low. See Brown, 422 F.3d at 945 (Reinhardt,

J., dissenting) (“Given that the mere existence of an additional

hearing or process may be sufficient to constitute an available

administrative remedy under [Supreme Court precedent], any

question as to whether there are in fact other types of avail-

able relief is inconsequential.”). The exact extent of a defen-

dant’s burden of proof is articulated in Hilao, 103 F.3d at 778

n.5, and Brown, 422 F.3d at 936-37.

In Hilao, while interpreting almost identical text as that in

the PLRA, we outlined the burden of a defendant when rais-

ing the failure to exhaust administrative remedies as an affir-

mative defense. 103 F.3d at 778 n.5. A defendant need only

show the existence of remedies that the plaintiff did not use.

Id. In Hilao, we dealt with the failure to exhaust (affirmative

defense) under the Torture Victim Protection Act of 1991

(“TVPA”), 106 Stat. 73, note following 28 U.S.C. § 1350.

The TVRA states that “[a] court shall decline to hear a claim

under this section if the claimant has not exhausted adequate

and available remedies in the place in which the conduct giv-

ing rise to the claim occurred.” 28 U.S.C. § 1350, note, § 2(b)

(emphasis added). Like the TVRA, the PLRA requires the

administrative remedies to be available. We determined that

the respondent “has the burden of raising the nonexhaustion

of remedies as an affirmative defense and must show that

domestic remedies exist that the claimant did not use.”5 Hilao,

103 F.3d at 778 n.5 (quoting S. Rep. No. 249 at 9-10).

5

“Once the defendant makes a showing of remedies abroad which have

not been exhausted, the burden shifts to the plaintiff to rebut by showing

that the local remedies were ineffective, unobtainable, unduly prolonged,

inadequate, or obviously futile.” Hilao, 103 F.3d at 778 n.5 (quoting S.

Rep. No. 249 at 9-10).

11690 ALBINO v. BACA

In Brown, we stated that, because “there can be no ‘absence

of exhaustion’ unless some relief remains ‘available,’ a defen-

dant must demonstrate that pertinent relief remained avail-

able, whether at unexhausted levels of the grievance process

or through awaiting the results of the relief already granted as

a result of that process.” 422 F.3d at 936-37. To understand

the extent of the defendant’s burden to show that the “perti-

nent relief remained available,” we stated that “[r]elevant evi-

dence in so demonstrating would include statutes, regulations,

and other official directives that explain the scope of the

administrative review process.” Id. at 937. This indicates that

a defendant, under the PLRA, must show that some adminis-

trative relief existed to meet his or her burden of proof. Thus,

for Baca to meet his burden, he must show that (1) a griev-

ance procedure existed and (2) Albino did not exhaust the

grievance procedure. See Hilao, 103 F.3d at 778 n.5; Tuckel,

660 F.3d at 1254 (“Defendants thus bear the burden of assert-

ing and proving that the plaintiff did not utilize administrative

remedies.”).

[2] Baca met his burden. He presented evidence that

LASD Jail had a formal grievance procedure through attach-

ing Custody Division Manual § 5-12/010.00, which describes

the procedure, and through a declaration of a sheriff’s deputy.

He provided evidence that inmates could submit written

grievances regarding any prison condition, whether or not the

inmate utilized the formal Inmate Complaint Forms; that unit

commanders were required to ensure that each housing facil-

ity had adequate Inmate Complaint Forms available and that

inmates had unrestricted access to the forms; and that each

housing unit was required to have locked repository boxes

accessible to inmates so that inmates could deposit complaints

without hindrance, or inmates could give complaints to jail

staff. Further, Baca claims that Albino did not submit any

written grievance. Importantly, Albino concedes that a griev-

ance procedure existed and that he did not follow the proce-

dure. Thus, Baca has met his burden of showing a grievance

procedure existed, and it was not followed.

ALBINO v. BACA 11691

2. Plaintiff Has Not Met His Burden of Proving that the

Administrative Remedies Were Unavailable

Because Baca has met his burden of showing the absence

of exhaustion, the burden shifts to Albino to demonstrate that

the grievance procedure was unavailable.6 See Hilao, 103

F.3d at 778 n.5 (“Once the defendant makes a showing of

remedies abroad which have not been exhausted, the burden

shifts to the plaintiff to rebut by showing that the local reme-

dies were ineffective, unobtainable, unduly prolonged, inade-

quate, or obviously futile.”) (quoting S. Rep. No. 249 at 9-10).

Albino argues that he could not have complied with the griev-

ance procedure, because (1) he was unaware of the procedure,

(2) the LASD Jail failed to inform him of the procedure, and

(3) the jail had no method in place to inform inmates of the

procedure. We therefore must determine whether Albino has

met his burden of showing that LASD Jail’s grievance proce-

dure was “unavailable” (within the meaning of the PLRA)

where LASD Jail officials did not inform Albino of the griev-

ance procedure and he was unaware of the existence of the

jail’s procedure. Because Albino has not shown (1) that jail

staff affirmatively interfered with his ability to exhaust

administrative remedies or (2) that the remedies were

unknowable, he has not met his burden of showing that the

jail grievance procedure was “unavailable.”

6

See Tuckel, 660 F.3d at 1254 (“Once a defendant proves that a plaintiff

failed to exhaust, however, the onus falls on the plaintiff to show that rem-

edies were unavailable . . . .”); Nunez, 591 F.3d at 1224 (“Ngo hasn’t

shown that administrative procedures were unavailable, that prison offi-

cials obstructed his attempt to exhaust or that he was prevented from

exhausting because procedures for processing grievances weren’t fol-

lowed.” (quoting Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008))

(internal quotation marks omitted)); Johnson v. Dist. of Columbia, CIV.A.,

No. 11-1445 JEB, 2012 WL 2355577, at *3 (D.D.C. June 21, 2012)

(“Once Defendant has shown that Plaintiff failed to exhaust his adminis-

trative remedies, the burden shifts to Plaintiff to establish that a failure to

exhaust was due to the unavailability of remedies.”).

11692 ALBINO v. BACA

i. Case Law Finding Administrative Remedies

Effectively Unavailable Because of Affirmative Acts

Preventing or Disrupting Exhaustion

In Sapp v. Kimbrell, we determined “that improper screen-

ing of an inmate’s administrative grievances render[ed]

administrative remedies ‘effectively unavailable’ such that

exhaustion [was] not required under the PLRA.” 623 F.3d at

823. We found that “[i]f prison officials screen out an

inmate’s appeals for improper reasons, the inmate cannot pur-

sue the necessary sequence of appeals, and administrative

remedies are therefore plainly unavailable.” Id. We noted that

our holding

promote[d] exhaustion’s benefits by removing any

incentive prison officials might otherwise have to

avoid meaningfully considering inmates’ grievances

by screening them for improper reasons. Excusing a

failure to exhaust when prison officials improperly

screen an inmate’s administrative appeals helps

ensure that prison officials will consider and resolve

grievances internally and helps encourage use of

administrative proceedings in which a record can be

developed that will improve the quality of decision-

making in any eventual lawsuit. At the same time,

this exception does not alter prisoners’ incentive to

pursue administrative remedies to the extent possi-

ble.

Id. While the exception recognized in Sapp promotes the pur-

poses of exhaustion, “[t]o fall within this exception, a prisoner

must show that he attempted to exhaust his administrative

remedies but was thwarted by improper screening.” Id.

In Nunez we determined that Nunez’s failure to exhaust his

administrative remedies was excused, “because he took rea-

sonable and appropriate steps to exhaust his . . . claim and

was precluded from exhausting, not through his own fault but

ALBINO v. BACA 11693

by the Warden’s mistake.” 591 F.3d at 1224. Nunez took

many steps to exhaust his administrative remedies. Id. at

1220-22, 1224-25. However, Nunez requested a citation to the

law or regulation under which the conduct at issue was autho-

rized, and the warden mistakenly provided the wrong citation.

Id. at 1220. Because of the erroneous citation, Nunez ulti-

mately failed to properly follow the grievance procedures. Id.

at 1221-23. Importantly, we did not excuse exhaustion,

because “Nunez could not obtain information that he subjec-

tively believed would be useful in preparing his appeal.” Id.

at 1225 (quoting the dissent) (internal quotation marks omit-

ted). Instead, we held “that exhaustion [was] excused because

Nunez could not [have] reasonably be[en] expected to exhaust

his administrative remedies without the Program Statement

that the Warden claimed to mandate the strip search, and

because Nunez timely took reasonable and appropriate steps

to obtain it.” Id. “Nunez believed in good faith that [the erro-

neous] Program Statement . . . was necessary, not merely use-

ful, for preparing his appeal. He could hardly believe

otherwise once the Warden told him that the challenged strip

search was authorized by that Program Statement.” Id. “[H]e

was finally told . . . that the Program Statement . . . did not

relate to strip searches. But up until that time, Nunez reason-

ably believed, based on the Warden’s written response . . .

that he needed to see [the] Program Statement . . . before he

could prepare an effective appeal.” Id. at 1226. Even though

the Warden’s mistake was innocent, “the mistake led Nunez

on an almost ten-month wild goose chase.” Id. “[H]aving

done everything he could do to obtain a document that the

Warden had led him to believe he needed, [Nunez] promptly

filed his [grievance form]. Rational inmates cannot be

expected to use grievance procedures to achieve the proce-

dures’ purpose when they are misled into believing they

must” perform an impossible action “in order to effectively

pursue their administrative remedies . . . .” Id.

[3] Sapp and Nunez are not controlling for this issue. In

those cases, we determined that affirmative actions by jail

11694 ALBINO v. BACA

staff preventing proper exhaustion, even if done innocently,

make administrative remedies effectively unavailable.7 Here,

there is no evidence that any jail official engaged in any mis-

conduct that prohibited Albino from learning of or following

the grievance procedure. The jail officials did not state that

there were no available remedies. See Brown, 422 F.3d at 946

(Reinhardt, J., dissenting) (“[R]elief would be unavailable . . .

when the prisoner is explicitly told, or the regulations make

it plain, that there is no further relief available to him.”).

Unlike Nunez, LASD Jail officials did nothing to direct

Albino in a direction that would cause him not to exhaust his

remedies. Further, unlike Sapp, there is no evidence that

LASD Jail staff improperly handled a complaint by Albino,

because Albino never attempted to file a written complaint. In

sum, Sapp and Nunez are inapplicable here, because there is

no evidence that the LASD officials took any action to delay

or thwart Albino’s efforts to utilize or exhaust its grievance pro-

cedure.8

7

Our sister circuits also hold that exhaustion is not required when affir-

mative actions of prison officials make administrative remedies effectively

unavailable. Sapp, 623 F.3d at 822-23 (compiling cases); Nunez, 591 F.3d

at 1224 (same). For example, according to our sister circuits, exhaustion

is excused when prison officials refuse to provide the required grievance

forms upon request or ignore such a request. See, e.g., Dale v. Lappin, 376

F.3d 652, 656 (7th Cir. 2004); Miller v. Norris, 247 F.3d 736, 738, 740

(8th Cir. 2001). Similarly, exhaustion is excused when prison officials fail

to respond to a properly filed grievance. Dole v. Chandler, 438 F.3d 804,

809, 811 (7th Cir. 2006). Exhaustion is also excused when prison staff

erroneously informs the inmate that he must await the termination of an

investigation before filing a grievance. Brown v. Croak, 312 F.3d 109,

111-12 (3d Cir. 2002). Lastly, threats of retaliation for filing a grievance

excuse exhaustion. Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.

2008); Macias v. Zenk, 495 F.3d 37, 45 (2d Cir. 2007); Kaba v. Stepp, 458

F.3d 678, 685-86 (7th Cir. 2006).

8

The dissent would conclude that the deputies’ failure to inform Albino

of the jail’s grievance procedures after he complained orally constitutes a

“mistake” by the jail that prevented Albino from exhausting his claims.

There is no precedent for this premise and the dissent cites none. In Sapp

and Nunez, it was the jails’ own conduct, even if accidental, that prevented

ALBINO v. BACA 11695

Albino argues that deputies affirmatively acted to mislead

him about the grievance procedure, because deputies told

Albino to contact his attorney for help. However, no evidence

suggests that he contacted his public defender about his clas-

sification or about protective custody. We presume that the

public defender would have advised him of the grievance pro-

cedure process and how to comply. Instead of making the

jail’s grievance procedure unavailable, like providing the

wrong regulation citation in Nunez, telling Albino to contact

his attorney actually led Albino in the direction of learning of

the grievance procedure and how to comply. The statement

did not prevent Albino from discovering or complying with

the grievance procedure. Lastly, our decision should not, by

determining that they erred here, discourage custodians from

advising detainees to speak with their lawyers should the

detainees have concerns about the conditions of their confine-

ment.

ii. Subjective Lack of Awareness Does Not Make an

Administrative Remedy Unavailable When the Remedy is

Knowable

[4] Albino has the burden to show that the grievance pro-

cedure was unavailable based on his unawareness of the

grievance procedure and the LASD Jail’s failure to inform

him of the procedure. We hold that he has failed to meet his

burden.

[5] In Hilao, because we held that the defense must only

show that administrative remedies were available and unused,

the detainees from exhausting their remedies. The dissent’s view would

dramatically extend those cases by allowing a detainee to, in essence, trig-

ger a “mistake” that will then place the burden on the jail to assure that

a prisoner is subjectively aware of grievance procedures. However, the

defense has already met its burden under our precedent by evidencing the

existence of administrative remedies. See Brown, 422 F.3d at 936-37.

Albino has failed to meet his burden to show that the remedies were

unavailable.

11696 ALBINO v. BACA

it follows that an inmate’s subjective unawareness of an

administrative remedy and a prison’s failure to expressly

inform the inmate of the remedy are not alone sufficient to

excuse exhaustion. See 103 F.3d at 778 n.5. We have previ-

ously required a good-faith effort on the part of inmates to

exhaust a prison’s administrative remedies as a prerequisite to

finding remedies effectively unavailable. See Sapp, 623 F.3d

at 823; (“[A] prisoner must show that he attempted to exhaust

his administrative remedies but was thwarted by improper

screening.”); Nunez, 591 F.3d at 1224 (“[Nunez] took reason-

able and appropriate steps to exhaust his Fourth Amendment

claim and was precluded from exhausting . . . .”). This princi-

ple logically extends to the current situation to obligate an

inmate to make reasonable, good-faith efforts to discover the

appropriate procedure for complaining about prison condi-

tions before unawareness may possibly make a procedure

unavailable.

Other circuits have addressed this issue. The Second Cir-

cuit has articulated that “[t]he test for deciding whether the

ordinary grievance procedures were available must be an

objective one: that is, would ‘a similarly situated individual of

ordinary firmness’ have deemed them available.” Hemphill v.

New York, 380 F.3d 680, 688 (2d Cir. 2004) (quoting Davis

v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Similarly, the

Eleventh Circuit, in Goebert v. Lee County, applied an objec-

tive standard. 510 F.3d at 1322-24. An objective standard is

consistent with how we have articulated the test regarding

whether administrative remedies are unavailable in terms of

whether “[r]ational inmates can[ ] be expected to use [the]

grievance procedures . . . .” See Nunez, 591 F.3d at 1226.

Goebert is of particular importance because it involved an

inmate’s unawareness of the administrative procedure. In

Goebert, Goebert did not know and could not have found out

that she could or should have appealed a denial of her admin-

istrative complaint. 510 F.3d at 1322. The parties agreed (1)

that the Inmate Handbook contained “nothing . . . about any

ALBINO v. BACA 11697

procedure for appealing the denial of a complaint” and (2)

that, although the appeal procedure was laid out in the jail’s

General Operating Procedures, “no inmate was ever permitted

to see those procedures . . . .” Id. Thus, there was nothing in

the record leading a reasonable inmate to believe there was an

appeal procedure or indicating that an inmate could have dis-

covered the appeal procedure upon a reasonable effort. See id.

Under these circumstances, Goebert held that the failure to

exhaust is excused when an inmate does not know of the

grievance procedure and could not have reasonably discov-

ered the procedure. Id. at 1322-24; see also Bryant v. Rich,

530 F.3d 1368, 1373 n.6 (11th Cir. 2008) (“We have said that

an administrative remedy is not ‘available’ if it is unknown

and unknowable to the inmate.” (citing Goebert, 510 F.3d at

1323)). Simply put, “[t]hat which is unknown and unknow-

able is unavailable; it is not ‘capable of use for the accom-

plishment of a purpose.’ ” Goebert, 510 F.3d at 1323 (quoting

Booth v. Churner, 532 U.S. 731, 738 (2001)). Applying its

test to the facts in Goebert, the Eleventh Circuit held that the

grievance procedures were not “available,” because Goebert

was unaware of the appeal procedures and could not have dis-

covered them through reasonable effort. Id. at 1322-23. The

Eleventh Circuit articulated its objective standard in the con-

text of an inmate lacking knowledge of the grievance proce-

dure.

Other out-of-circuit cases support an “unknowable,” objec-

tive standard by rejecting an inmate’s subjective unawareness

alone as sufficient to make a prison’s administrative proce-

dure unavailable. For example, in Chelette v. Harris, the

Eighth Circuit held that the inmate failed to exhaust his

administrative remedies even though the warden had “stated

he would take care of the matter.” 229 F.3d 684, 686 (8th Cir.

2000). The Eighth Circuit rejected the district court’s finding

that the inmate “could logically have believed that he had

exhausted such administrative remedies as were available to

him . . . .” Id. at 688. It stated:

11698 ALBINO v. BACA

If it is “likely” that Chelette could have filed a griev-

ance over the alleged lack of medical care, it can

hardly be said that he exhausted such administrative

remedies as were available to him. Section 1997e(a)

says nothing about a prisoner’s subjective beliefs,

logical or otherwise, about the administrative reme-

dies that might be available to him. The statute’s

requirements are clear: If administrative remedies

are available, the prisoner must exhaust them.

Id. Admittedly Chelette is distinguishable from the present

case, because the inmate knew about the grievance procedures

but chose not to pursue them given the warden’s representa-

tion. Nevertheless, Chelette is instructive because of the

court’s holding that the prisoner’s subjective belief was not

determinative of whether a grievance procedure was “unavail-

able.”

Construing Chelette, several circuit courts of appeal and

district courts have concluded that a plaintiff’s lack of knowl-

edge of the administrative procedures does not make those

procedures unavailable. E.g., Twitty v. McCoskey, 226 F.

App’x 595, 595-96 (7th Cir. 2007) (unpublished) (rejecting

inmate’s argument that his failure to exhaust should have

been excused, because he was unaware of the procedure and

the prison failed to inform him of it); Brock v. Kenton Cnty.,

93 F. App’x 793 (6th Cir. 2004) (unpublished) (the Sixth Cir-

cuit has rejected an inmate’s argument that exhaustion was

unavailable to him because he was unaware of the system);

Gonzales-Liranza v. Naranjo, 76 F. App’x 270, 273 (10th Cir.

2003) (unpublished) (“Thus, even accepting plaintiff’s allega-

tion that he was unaware of the grievance procedures, there

is no authority for waiving or excusing compliance with

PLRA’s exhaustion requirement.”); Johnson, 2012 WL

2355577, at *6 (“While th[e D.C.] Circuit has not yet weighed

in on the issue, the majority of courts to have done so have

held that an inmate’s subjective lack of information about his

administrative remedies does not excuse a failure to

ALBINO v. BACA 11699

exhaust.”). None of the plaintiffs in the foregoing cases chal-

lenged the existence of the procedure nor did any of the plain-

tiffs suggest that they could not have discovered the

administrative procedure through reasonable effort. In short,

the plaintiffs’ ignorance of the administrative remedies alone

did not excuse exhaustion. Cf. Fisher v. Johnson, 174 F.3d

710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse

prompt filing.”); Cooper v. Bell, 628 F.2d 1208, 1212 n.6 (9th

Cir. 1980) (“mere ignorance of one’s legal rights does not jus-

tify extension of a filing period”), overruled on other grounds

as recognized in Valenzuela v. Kraft, Inc., 801 F.2d 1170,

1174 (9th Cir. 1986)); Marrero Morales v. Bull Steamship

Co., 279 F.2d 299, 301 (1st Cir. 1960) (“[M]any cases have

held that ignorance of one’s legal rights does not excuse a

failure to institute suit.”). Furthermore, a prison’s failure to

inform an inmate of its grievance procedure does not automat-

ically make a grievance procedure unavailable. See Hilao, 103

F.3d at 778 n.5; Yousef v. Reno, 254 F.3d 1214, 1221 (10th

Cir. 2001) (holding that the Assistant Attorney General

(“AAG”) had no duty to inform the prisoner of the prison’s

formal grievance procedures when the AAG responded to an

inmate’s informal complaint).

[6] Therefore, for an inmate to claim that a prison’s griev-

ance procedure was effectively unavailable due to the

inmate’s unawareness of the procedure, the inmate must show

that the procedure was not known and unknowable with rea-

sonable effort. Such a standard mitigates the concern raised in

Goebert that jails and prisons should not be allowed “to play

hide-and-seek with administrative remedies,” Goebert, 510

F.3d at 1323, because Albino has failed to show that LASD

Jail hid the procedure and failed to show that Albino could

not discover it if he would have sought to pursue it. Further,

the standard is consistent with the ordinary meaning of “avail-

able.” See Hilao, 103 F.3d at 778 n.5 (indicating that an exist-

ing administrative remedy is available unless it is somehow

“ineffective, unobtainable, unduly prolonged, inadequate, or

11700 ALBINO v. BACA

obviously futile”); cf. Mohamad v. Palestinian Auth., 132 S.

Ct. 1702, 1706 (2012) (reading the word “individual” based

on its natural, ordinary meaning); Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 175 (2009) (“Statutory construction must

begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accu-

rately expresses the legislative purpose.” (internal quotation

marks omitted)). The definition of “available” is “capable of

use for the accomplishment of a purpose,” and that which “is

accessible or may be obtained.” Booth, 532 U.S. at 737 (quot-

ing Webster’s Third New International Dictionary 150

(1993)) (internal quotation marks omitted). With these consid-

erations in mind we explain why Albino fails to meet his bur-

den of proof.

[7] To meet his burden of proving the unavailability of the

grievance procedure, Albino submitted his declaration. How-

ever, Albino’s assertions in his declaration alone do not meet

his burden of proof, because the assertions simply prove that

Albino was subjectively unaware of the grievance procedure.

[8] Here, while Albino claims ignorance of LASD Jail’s

grievance procedure, the LASD Jail had a formal grievance

procedure that was accessible and such facts were undisputed.

The grievance procedure was accessible for a number of rea-

sons: (1) the procedure was outlined in Custody Division

Manual § 5-12/010.00; (2) inmates could submit written

grievances regarding any prison condition, whether or not the

inmate utilized the formal Inmate Complaint Forms; (3) unit

commanders were required to ensure that each housing facil-

ity had adequate Inmate Complaint Forms available and that

inmates had unrestricted access to the forms; and (4) each

housing unit was required to have locked repository boxes

accessible to inmates so that inmates could deposit complaints

without hindrance, or inmates could give complaints to jail

staff. The magistrate judge also found no genuine issue of

material fact that the LASD Jail’s grievance procedure was

accessible, and thus, by inference, knowledge of the grievance

ALBINO v. BACA 11701

procedure could have been obtained. Therefore, simply

because Albino was unaware of the grievance procedure does

not mean that the procedure was unknowable.

Anticipating the problem that subjective unawareness

would not be enough, Albino contends that his subjective

unawareness was objectively reasonable, because he says the

jail had no formal method for informing the inmates of the

grievance procedure.9 Notwithstanding, Albino’s declaration

only proves that he was subjectively unaware of the grievance

procedures and does not support his theory that his unaware-

ness was objectively reasonable. He provides no evidence to

show that he could not have discovered the grievance proce-

dure with reasonable effort.

For example, he asserts that (1) he never had an orientation;

(2) he never saw the Custody Division Manual § 5-12/010.00,

or if he did, it was not in Spanish; (3) he has never spoken to

an inmate aware of § 5-12/010.00; and (4) he had never seen

or heard of a complaint box. Each of these assertions only

shows Albino’s lack of subjective awareness. Unlike Goebert,

where the inmate could not have discovered the procedure

with reasonable effort because the inmate handbook did not

explain the procedure, 510 F.3d at 1323, Albino does not

show that he was foreclosed from discovering the procedure

with reasonable effort. In Goebert, the parties agreed that the

inmate manual did not describe the procedure at issue and that

the jail never permitted inmates to see the General Operating

Procedures manual that actually did describe the procedure.

Id. at 1322. Here, Albino fails to dispute that the Custody

Division Manual described the grievance procedure in § 5-

12/010.00, that jail policies required every housing unit to

9

On summary judgment, Baca may have been at a disadvantage as to

this argument. If he would have presented evidence of a method of

informing inmates, this would have created an issue of material fact and

could have derailed Baca’s chances of winning on summary judgment. In

any event the record is silent on this point.

11702 ALBINO v. BACA

have an adequate supply of Inmate Complaint Forms, or that

locked grievance repositories existed in each housing unit.

Albino fails to satisfy his burden of showing why these facts

do not indicate that an inmate could have discovered the

LASD Jail’s grievance procedure with reasonable effort.10

[9] Furthermore, there is no evidence in the record that

Albino would not have been able to discover the grievance

procedure. Instead, the record indicates that (with some effort)

he likely could have become aware of the grievance proce-

dure. As counsel for defendant aptly noted in oral argument,

this case boils down to an inmate that alleges “I didn’t see”

rather than “I looked and couldn’t find” and “no one told me”

rather than “I asked and wasn’t told or was told misinforma-

tion.”

Although on summary judgment the jail has not offered

evidence of a proscribed method for informing inmates of the

procedure, this was not the jail’s burden. Moreover, a subjec-

tive lack of awareness, without (a) some affirmative actions

preventing discovery or (b) objective circumstances showing

that efforts to discover would be fruitless, does nothing to

suggest that the procedure was unavailable when “available”

is defined as “accessible or may be obtained.” This is consis-

tent with Goebert’s articulated rule that “[t]hat which is

unknown and unknowable is unavailable.” 510 F.3d at 1323.

It is also consistent with Nunez and Sapp, because in those

10

The dissent asks what more Albino should have done. Though the

question seems rhetorical, the answer supports our conclusion. Albino

should have followed the procedures outlined in Custody Division Manual

§ 5-12/010.00. He should have taken advantage of the complaint boxes

that were accessible to him. Instead, Albino has not met his burden to

show that he took any of the steps that were reasonably available to him

as a detainee. Thus, Albino fails to demonstrate that the grievance proce-

dure was objectively unknowable (and, therefore, the remedy unavailable).

Accordingly, while the dissent raises the issue of what more Albino could

have done, this case resolves on the burden that Albino failed to carry by

alleging no more than “I didn’t know.”

ALBINO v. BACA 11703

cases the inmates made reasonable, good faith efforts to com-

ply with the grievance procedures and affirmative actions

impeded their exhaustion, making access to or the ability to

obtain the grievance procedures unreasonable.

[10] Lastly, Albino’s evidence regarding his oral com-

plaints does not overcome his failure to meet his burden of

proof. Although he orally complained, Albino never

attempted to make a written complaint to any jail official or

staff member. The jail’s grievance procedure, as articulated in

Custody Division Manual § 5-12/010.00, does not indicate

that any action should be taken with regard to oral complaints.

This seems especially relevant, because the jail processed

Albino and calculated an appropriate custody and security

level classification (based on a number of factors) that indi-

cated that Albino should be housed with the general popula-

tion. Further, Albino’s oral complaints did not put the jail on

some sort of constructive notice that would excuse exhaus-

tion. Cf. Macias, 495 F.3d at 43-44 (holding that, even if

informal complaints and administrative tort claims put the

prison on notice of the grievance, that does not satisfy the

requirement to procedurally exhaust; further, notice alone is

insufficient because the benefits of exhaustion can be realized

only if the prison grievance system is followed).

IV. CONCLUSION

[11] Because Albino has failed to meet his burden of

showing that the LASD Jail’s grievance procedure was

unavailable, we AFFIRM the district court.

11704 ALBINO v. BACA

GILMAN, Circuit Judge, dissenting:

I agree with the majority that an inmate must do more than

simply claim that he was unaware of the jail’s grievance pro-

cedure in order to show that administrative remedies were

unavailable to him under the PLRA’s exhaustion requirement.

In the present case, however, Albino orally complained on

several occasions to deputies at the jail about being raped and

brutally assaulted by his fellow inmates, and about the jail’s

failure to transfer him to protective custody following each

assault. I believe that Albino’s actions were sufficient to trig-

ger an obligation on the part of the jail to notify him of the

existence of its grievance procedure. Because the jail in this

case instead “stonewalled” Albino by not advising him of the

procedures necessary for him to seek redress for his com-

plaints, I would hold that Albino has demonstrated that the

administrative remedies were effectively unavailable to him

and that he has therefore satisfied the PLRA’s exhaustion

requirement. For this reason, I respectfully dissent.

I begin with what I believe is common ground between my

view and the majority’s view regarding when a jail’s remedy

is unavailable for purposes of the PLRA’s exhaustion require-

ment. As stated above, I agree with the majority that an

inmate’s unawareness of the jail’s grievance procedure, on its

own, is insufficient to make that procedure effectively

unavailable to him. Otherwise, courts would constantly have

to “inquir[e] into an individual inmate’s knowledge of the

grievance process”—“a time-consuming task fraught with

uncertainty, as any inmate could create a triable issue of fact

merely by averring he did not know of the process.” Johnson

v. District of Columbia, ___ F. Supp. 2d ___, 2012 WL

2355577, at *8 (D.D.C. June 21, 2012) (brackets, citation, and

internal quotation marks omitted). Such a rule would encour-

age the ignorance of (rather than the use of) administrative

remedies and would clog the courts, thereby thwarting the

purposes underlying the exhaustion requirement. Cf. Arnold v.

Goetz, 245 F. Supp. 2d 527, 537 (S.D.N.Y. 2003) (noting that

ALBINO v. BACA 11705

“an inmate may not close his eyes to what he reasonably

should have known”) (internal quotation marks omitted)).

I also agree with the majority that, at the other end of the

spectrum, “affirmative actions by jail staff preventing proper

exhaustion, even if done innocently, make administrative

remedies effectively unavailable.” (Maj. Op. at 11693-94)

Were this not the rule, a jail would be able to “have it both

ways”: it could “obstruct an inmate’s pursuit of administrative

exhaustion on the one hand and then claim the inmate did not

properly exhaust these remedies on the other.” Goetz, 245 F.

Supp. 2d at 537. This outcome is antithetical to the notion of

due process.

What makes the present case a close one is that it falls in

between these two extremes. Albino is not alleging that the

Los Angeles County Jail affirmatively interfered with his abil-

ity to exhaust his administrative remedies. But he is alleging

a good bit more than subjective unawareness. His claim is that

the jail had no policy of informing its inmates about its griev-

ance procedure, that a typical inmate such as himself would

have no clear basis to discover the procedure’s existence, and

that he repeatedly made efforts to grieve by orally notifying

the sheriff’s deputies of his complaint and his desire to be

placed in protective custody. This brings us to the two critical

questions: (1) what should the rule be under such circum-

stances, and (2) how should that rule be applied to the facts

of this case?

With respect to the first question, the majority holds that,

when a jail has in place a procedure for complaining about the

conditions of confinement, an inmate must “make reasonable,

good-faith efforts to discover [that procedure] before

unawareness may possibly make [it] unavailable.” (Maj. Op.

at 11696; see also id. at 11699 (“Therefore, for an inmate to

claim that a prison’s grievance procedure was effectively

unavailable due to the inmate’s unawareness of the procedure,

the inmate must show that the procedure was not known and

11706 ALBINO v. BACA

[was] unknowable with reasonable effort.”)) I will not quibble

with this formulation of the proper rule. As set forth by the

majority, the rule is consistent with that adopted by the Elev-

enth Circuit, which held that the phrase “such remedies as are

available” does not include “remedies or requirements for

remedies that an inmate does not know about, and cannot dis-

cover through reasonable effort, by the time they are needed.”

See Goebert v. Lee Cnty., 510 F.3d 1312, 1322 (11th Cir.

2007).

Where I part ways with the majority is on the second

question—whether, in construing the facts in the light most

favorable to him, Albino actually made a reasonable, good-

faith effort to discover the jail’s grievance procedure. In

answering this question in the negative, the majority first con-

cludes that “[t]he grievance procedure was accessible”

because

(1) the procedure was outlined in Custody Division

Manual § 5-12/010.00; (2) inmates could submit

written grievances regarding any prison condition,

whether or not the inmate utilized the formal Inmate

Complaint Forms; (3) unit commanders were

required to ensure that each housing facility had ade-

quate Inmate Complaint Forms available and that

inmates had unrestricted access to the forms; and (4)

each housing unit was required to have locked repos-

itory boxes accessible to inmates so that inmates

could deposit complaints without hindrance, or

inmates could give complaints to jail staff.

(Maj. Op. at 11700 (citations omitted))

The majority is certainly right that these facts demonstrate

that a grievance procedure actually existed. (See Maj. Op. at

11690) But that is all they show. The enumerated facts tell us

nothing about whether an inmate such as Albino could have

reasonably discovered that the procedure existed and was

ALBINO v. BACA 11707

available to him. There is simply no evidence that inmates

received copies of the Custody Division Manual or were oth-

erwise made aware of the grievance procedure. Nor is there

any evidence that the locked repository boxes or grievance

forms were noticeable to or identifiable by the inmates (even

if the inmates technically had access to both).

Yet the majority ultimately concludes that Albino has “pro-

vide[d] no evidence to show that he could not have discovered

the grievance procedure with reasonable effort.” (Maj. Op. at

11701) In support of this conclusion, the majority contrasts

the facts of Albino’s case with the facts of Goebert, in which

the Eleventh Circuit held that the inmate had met her burden

of showing that the administrative remedies were not avail-

able with reasonable effort.

I am puzzled by the majority’s reliance on Goebert. That

case involved an inmate who failed to file an appeal of an

adverse administrative response to her complaint, as required

under the jail’s grievance procedure. The court excused her

failure because, as the majority here points out, “the parties

agreed that the inmate manual did not describe the procedure

at issue and that the jail never permitted inmates to see the

General Operating Procedures manual that actually did

describe the procedure.” (Maj. Op. at 11701) On these facts,

as even the majority acknowledges, “there was nothing in the

record leading a reasonable inmate to believe there was an

appeal procedure or indicating that an inmate could have dis-

covered the appeal procedure upon a reasonable effort.” (Maj.

Op. at 11697)

In attempting to distinguish Goebert from the present case,

the majority recites the previously mentioned facts, reasoning

that “Albino fails to dispute that the Custody Division Manual

described the grievance procedure in § 5-12/010.00, that jail

policies required every housing unit to have an adequate sup-

ply of Inmate Complaint Forms, or that locked grievance

repositories existed in each housing unit.” (Maj. Op. at

11708 ALBINO v. BACA

11701-02) But again, these facts show only that the grievance

procedure exists. They do not suggest that Albino should have

been aware of the procedure any more than the existence of

the appellate procedure in Goebert suggested that Goebert

should have been aware of it.

To the contrary, when the facts are construed in the light

most favorable to Albino, they show that he persistently com-

plained to deputies at the jail about his repeated assaults and

about the jail’s failure to transfer him to protective custody

following each assault. Not once, however, was he ever told

that he could submit a written complaint in one of the locked

boxes apparently located in each housing unit.

The majority disregards these complaints because they

were made orally as opposed to in writing, the latter being

required by the jail’s grievance procedure. But Albino had not

been made aware of this procedure and had not received a

copy of the Custody Division Manual. In my opinion, these

facts satisfy the “good-faith effort” standard announced by the

majority and should have triggered on the part of the jail an

obligation to alert Albino to the existence of the jail’s griev-

ance procedure.

Instead, the deputies at various times (a) did nothing, (b)

disclosed the nature of his charges to the other inmates (which

precipitated the assaults), and (c) told him that only his attor-

ney could help him. Albino deserved better. Under the cir-

cumstances, his repeated attempts to inform the deputies of

his complaints should be considered “reasonable and appro-

priate steps to exhaust his . . . claim[s].” Cf. Nunez v. Duncan,

591 F.3d 1217, 1224, 1226 (9th Cir. 2010) (holding that

exhaustion is satisfied when the prisoner “took reasonable and

appropriate steps to exhaust his . . . . claim and was precluded

from exhausting, not through his own fault but by the War-

den’s mistake,” or by the Warden’s “bad faith or deliberate

obstruction”). I believe that the deputies’ silence in the face

ALBINO v. BACA 11709

of Albino’s complaints constitutes a “mistake” by the jail that

precluded Albino from exhausting his claims.

As the Eleventh Circuit in Goebert explained:

That which is unknown and unknowable is unavail-

able; it is not “capable of use for the accomplishment

of a purpose.” Booth [v. Churner], 532 U.S. [731,]

738 [(2001)]. If we allowed jails and prisons to play

hide-and-seek with administrative remedies, they

could keep all remedies under wraps until after a

lawsuit is filed and then uncover them and proclaim

that the remedies were available all along. The

Queen [of Hearts in Alice’s Adventures in Wonder-

land] would be proud.

Goebert, 510 F.3d at 1323. This policy concern should apply

with equal force here.

In sum, although the majority adopts a rule that is formally

consistent with Goebert, the majority’s application of that rule

is anything but. I am frankly at a loss to determine what the

majority thinks would have constituted a “good-faith effort”

to discover the grievance procedure in this case. Put more

simply: What more should Albino have done? In my view,

once an inmate engages in a sincere effort to complain about

the conditions of his confinement to someone with authority

at the jail, that assertion should trigger on the part of the jail

an obligation to inform the inmate about the proper procedure

to pursue his complaint. Because the jail in this case “kept

[Albino] in the dark about the path [he] was required to fol-

low,” see id., I would reverse the judgment of the district

court in favor of the sheriff.