Jackson v. Fong

870 F.3d 928

Charlie David JACKSON, Plaintiff–Appellant,

v.R. FONG; K. Freiha; P. Burton, Defendants–Appellees.

No. 15-15547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2017, San Francisco, California

Filed August 31, 2017

Gregory S. Bok (argued), Carolyn S. Small, Jessica R. Culpepper, Daniel R. Adler, and Blaine H. Evanson, Gibson Dunn & Crutcher LLP, Los Angeles, California, for Plaintiff–Appellant.

Alicia A. Bower (argued), Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California, for Defendants–Appellees.

Before: Sidney R. Thomas, Chief Judge, Mary H. Murguia, Circuit Judge, and Jon P. McCalla,^* District Judge.

Concurrence by Judge McCalla

OPINION

MURGUIA, Circuit Judge:

This appeal arises from a prison's alleged indifference to an inmate's medical needs. The plaintiff, Charles "Charlie" Jackson, first filed suit while a prisoner at San Quentin State Prison in California. After his release, Jackson amended his complaint with leave of court. The district court then granted summary judgment to the defendants based on Jackson's failure to exhaust his administrative remedies as a "prisoner" under the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a). The question on appeal is whether Jackson is subject to the PLRA's exhaustion requirement because he initiated his suit when he was a prisoner, or if instead Jackson is not subject to the exhaustion requirement because he filed the operative complaint after his release from custody. We hold that a plaintiff who was in custody at the time he initiated his suit but was free when he filed his amended operative complaint is not a "prisoner" subject to a PLRA exhaustion defense. We therefore reverse and remand.

I.

In May 2010, Jackson became a prisoner at San Quentin State Prison (San Quentin) in San Quentin, California. He was serving a term for second-degree burglary. On June 11, 2012, while still incarcerated in San Quentin, Jackson filed a pro se prisoner complaint in federal district court challenging the conditions of his confinement under 42 U.S.C. § 1983. Unless otherwise stated, the following facts assume the truth of the allegations in Jackson's operative third amended complaint, construed liberally.

In 2010, suffering from mental health problems,¹ Jackson met with a series of prison doctors (the Doctors). On June 15, he met with Dr. R. Fong, who told Jackson that he did not qualify for the prison's mental health program. On June 24, Jackson sent a health services request. Responding to that request on June 30, Dr. K. Freiha also met with Jackson and denied his request for treatment, stating that Jackson could not "dictate the program and would not be provided treatment."

On August 27, 2010, Jackson met with Dr. P. Burton, and requested administrative segregation (solitary confinement) to help address his mental health issues. After Burton denied his request, Jackson threatened violence unless prison officials placed him in solitary confinement. Subsequently, prison officials placed Jackson in solitary confinement from August 27, 2010 to November 5, 2011. During that time, Jackson's physical and mental health "deteriorated significantly." He "would often miss numerous medical appointments and classification hearings ... because he could not leave his cell [due] to severe social phobia, panic attacks, and depression." He lost good-time credits and spent "unnecessary time in prison" because of his time in solitary confinement.

II.

The California Department of Corrections and Rehabilitation (CDCR) has an administrative review process with well-established procedures and three levels of review. On-site staff process health care appeals at the first and second level. Third level appeals go to staff in the Inmate Correspondence and Appeals Branch within the headquarters of the California Correctional Health Care Services.

In March 2012, Jackson filed an inmate health care appeal for review of the Doctors' decisions and their alleged denial of mental health treatment. San Quentin's Health Care Appeals Office dismissed Jackson's appeal as untimely. Jackson concedes his administrative appeal was untimely.

Jackson then submitted an appeal—effectively to the second level of review—arguing that officials should excuse his untimeliness in light of the mental health issues he had experienced. The Health Care Appeals Office received the second-level appeal on May 10, 2012, and denied it on May 30, 2012.

At this point, Jackson began to pursue review simultaneously in the CDCR and in federal district court. His appeal to the third and final level of review within CDCR's administrative scheme reached that office in July 2012. CDCR took no immediate action. In the meantime, while still in prison and awaiting the third-level administrative decision, Jackson filed suit in federal district court. Jackson subsequently filed a first amended complaint in September 2012.

In December 2012, while Jackson's first amended complaint was pending before the district court, CDCR released him from custody. At the time of Jackson's release, his administrative appeal remained pending at the third level of review. In January 2013, CDCR closed Jackson's still-pending appeal because of his release.

Within three days of his release, Jackson notified the district court that he was no longer in custody and withdrew his pending request for injunctive relief. The district court dismissed Jackson's first amended complaint with leave to amend. Jackson then filed a second amended complaint on March 7, 2013, when he was no longer in custody.

In response, one of the named defendants moved to dismiss the second amended complaint, arguing that Jackson improperly asserted unrelated claims against numerous defendants in one suit, and failed to allege the participation of the defendants in a common event or set of events. The district court granted the motion to dismiss with partial leave to amend, effectively giving Jackson a choice about which set of claims to pursue:

The dismissal is with partial leave to amend to bring one of plaintiff's three claims—deprivation of mental health treatment, food contamination or use of excessive force (as well as supervisory liability claim connected to underlying claim)—in an amended complaint within 30 days of this order. (Plaintiff is free to bring the other two claims in two separate new suits.)

Jackson then filed his third amended complaint. It was, compared to his previous filings, succinct. Jackson named the Doctors as defendants, alleging that they "denied him treatment for his mental illnesses (including depression and anxiety) despite his asking them for treatment." Specifically, Jackson alleged that the Doctors showed deliberate indifference to his serious medical needs in violation of the Eighth Amendment. At the screening stage, the district court concluded that these allegations stated a cognizable claim.

The remaining three defendants—Fong, Burton, and Freiha—then moved for summary judgment. They argued that Jackson's failure to exhaust administrative remedies before filing suit violated the PLRA. In February 2015, the district court granted the motion. By this time, Jackson was an inmate at a state correctional facility in Nevada. Jackson timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and now reverse.

III.

When the district court grants summary judgment for failure to exhaust remedies under the PLRA, we review the district court's legal conclusions de novo, and its factual findings for clear error. Talamantes v. Leyva , 575 F.3d 1021, 1023 (9th Cir. 2009). "Interpretation of the PLRA is a question of law" reviewed de novo. Id.

Applying this standard, we review de novo whether a prisoner who first raises unexhausted claims while incarcerated, but is subsequently granted leave to file an amended complaint for damages after his release from prison, may be subject to an exhaustion defense under the PLRA.

A.

The PLRA "requires that a prisoner challenging prison conditions exhaust available administrative remedies before filing suit." Albino v. Baca , 747 F.3d 1162, 1165 (9th Cir. 2014) (en banc) (citing 42 U.S.C. § 1997e(a) ); see 42 U.S.C. § 1997e(a) ("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."). Administrative exhaustion within California requires the completion of the third level of administrative review. Harvey v. Jordan , 605 F.3d 681, 683 (9th Cir. 2010) ; see Cal. Code Regs. tit. 15, § 3084.1(b). "Failure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead and prove.’ " Albino , 747 F.3d at 1166 (quoting Jones v. Bock , 549 U.S. 199, 204, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) ). In most circumstances, the appropriate procedural mechanism is a motion for summary judgment under Federal Rule of Civil Procedure 56, with the defendant attaching the evidence necessary to demonstrate a failure to exhaust. Id.

In this case, Jackson did not exhaust his administrative remedies prior to initiating his federal suit.² The exhaustion requirement, however, does not apply to non-prisoners. Page v. Torrey , 201 F.3d 1136, 1139 (9th Cir. 2000) (holding that the PLRA exhaustion requirement only applies to "prisoners," and that to be a prisoner "the individual in question must be currently detained as a result of accusation, conviction, or sentence for a criminal offense") (emphasis added)); see Talamantes , 575 F.3d at 1023 ("The language of the statute is plain and unambiguous—the exhaustion requirement applies only to ‘prisoners.’ ").

The only question on appeal is whether the administrative exhaustion requirement applies to Jackson. The answer...