FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUILLIE L. HARVEY, JR.,
Plaintiff-Appellant,
v. No. 07-15023
G. JORDAN; E. CADEN; A.
HEDGPETH; L. E. SCRIBNER; J. D.C. No.
CV-05-05398-CRB
CELAYA; R. DERR; B. RANKIN; R. J.
OPINION
BASS; T. VARIZ; J. W. LUMAN; S.
GOMEZ; T. SURGES; N. GRANNIS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
April 8, 2010—Pasadena, California
Filed May 11, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt
*The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.
6863
6866 HARVEY v. JORDAN
COUNSEL
Matthew C. Lapple, Covington & Burling LLP, San Diego,
California, for the plaintiff-appellant.
Timothy J. McDonough, Deputy Attorney General, San Fran-
cisco, California, for defendants-appellees G. Jordan, A.
Hedgpeth, L.E. Scribner, J. Celaya, R. Derr, B. Rankin, R.J.
Bass, T. Variz, J.W. Luman, and S. Gomez.
Matthew M. Grigg (argued), Nancy E. Hudgins, Law Offices
of Nancy E. Hudgins, San Francisco, California, for
defendant-appellee E. Caden.
OPINION
REINHARDT, Circuit Judge:
Plaintiff Quillie Harvey is a prisoner at Salinas Valley State
Prison. Prison officials used pepper spray to extract him from
his cell on July 29, 2004, during a building-wide search of all
prisoners’ cells. This appeal involves two claims arising from
that cell extraction.
First, Harvey alleges that the use of chemical sprays was
excessive and has caused him to suffer long-term health prob-
lems. He contends that he mistakenly attributed those prob-
lems to a cold until a prison medical worker informed him of
the true cause on September 14, 2004. He filed a grievance
five days later, but prison officials rejected it as untimely.
Second, Harvey alleges that he was denied due process in
connection with a disciplinary charge for refusing to comply
with the cell search. Prison officials failed to hold a hearing
on the charge within the time allotted by prison rules. When
Harvey filed a grievance complaining about the delay and
HARVEY v. JORDAN 6867
requesting access to the videotape of the extraction, the prison
officials granted the relief he requested, informing him in
writing that a hearing would be provided and that he would
be permitted to view the tape prior to the hearing. The deci-
sion was labeled a partial grant of the grievance because Har-
vey had stated that in the alternative he requested that the
charge be dismissed. Five months later, Harvey complained
that the hearing still had not been held and that he still had not
been given the opportunity to view the tape. The prison offi-
cials construed that complaint as an appeal of their prior deci-
sion, and rejected it as untimely.
Harvey brought suit in district court. The defendants moved
to dismiss his excessive force and due process claims for fail-
ure to exhaust administrative remedies under the Prison Liti-
gation Reform Act, and the district court granted the motion.
Harvey appeals that ruling. We have jurisdiction under 28
U.S.C. § 1291. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th
Cir. 2009). We affirm the dismissal of the excessive force
claim, reverse the dismissal of the due process claim, and
remand for further proceedings consistent with this opinion.
ANALYSIS
[1] “The Prison Litigation Reform Act requires that a pris-
oner exhaust available administrative remedies before bring-
ing a federal action concerning prison conditions.” Griffin v.
Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C.
§ 1997e(a)). “[T]he PLRA exhaustion requirement requires
proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).
This means that a prisoner must “complete the administrative
review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to bringing suit
in federal court.” Marella v. Terhune, 568 F.3d 1024, 1027
(9th Cir. 2009) (quoting Ngo, 548 U.S. at 88).
[2] “The California prison system’s requirements ‘define
the boundaries of proper exhaustion.’ ” Marella, 568 F.3d at
6868 HARVEY v. JORDAN
1027 (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). A
prisoner must file a grievance within fifteen working days of
the event or decision that is the subject of his complaint,
unless he lacked the opportunity and ability to file within the
fifteen-day period. Id. Three levels of formal review are pro-
vided, and a prisoner exhausts the grievance process when he
completes the third level. Cal. Code Regs. tit. 15 § 3084.1(a).
Once he has been “ ‘reliably informed by an administrator
that no remedies are available,’ ” however, a prisoner is “not
required to ‘exhaust further levels of review.’ ” Marella, 568
F.3d at 1027 (quoting Brown v. Valoff, 442 F.3d 926, 935 (9th
Cir. 2005)).
I. The Excessive Force Claim
It is undisputed that Harvey did not file an excessive force
grievance within fifteen working days of his cell extraction on
June 29, 2004. Relying on Marella, however, Harvey argues
that his failure to file a timely grievance does not defeat his
claim. He contends that he lacked the opportunity to file a
grievance until September 14, 2004, when he learned the true
nature and origin of his injuries.
[3] In Marella, the prisoner spent more than fifteen work-
ing days in the hospital, in the infirmary, and then in adminis-
trative segregation after the incident that gave rise to his
complaint. 568 F.3d at 1026. The district court made no fac-
tual findings “as to whether Marella had access to the neces-
sary forms and whether he had the ability to file during his
stay in the hospital and prison infirmary, or during the admin-
istrative lockdown.” Id. at 1027. We held that if he had no
opportunity to file a grievance during that time, his failure to
comply with the fifteen-day deadline would not defeat his
claim. Id.
[4] Harvey argues that, just as a lack of access to the nec-
essary forms deprived Marella of the opportunity to file a
timely grievance, a lack of access to the necessary informa-
HARVEY v. JORDAN 6869
tion as to the cause of his illness deprived him of the opportu-
nity to file a timely grievance. He is in error. According to
Harvey’s own statements, he knew on the date of his cell
extraction that prison officials had no justification for any of
the cell searches conducted that day; that the pepper spray
“worked its way into [the] vent system,” causing obnoxious
and powerful fumes to circulate throughout the prison; that he
did not refuse to comply with the search or obstruct the view
through his cell window; and that the pepper spray grenade
“nearly incapacitated” him when it was thrown into his cell.
Because Harvey could have filed an excessive force grievance
based on those allegations alone, he was not prevented from
filing a timely grievance because of a lack of information.
[5] The fifteen-day period for filing a grievance began to
run from the date the excessive force was allegedly employed.
Because Harvey did not file a grievance until well after that
period had ended, he did not properly exhaust his administra-
tive remedies. Accordingly, we affirm the district court’s dis-
missal of the excessive force claim.
II. The Due Process Claim
The district court determined that Harvey appealed the par-
tial grant of his due process grievance “four and a half months
too late,” and that his “untimely appeal did not satisfy the
exhaustion requirement.” This analysis reflects a misunder-
standing of the sequence of events related to Harvey’s due
process claim.
On August 12, 2004, prison officials gave Harvey a “115”
notice of disciplinary charges for his alleged failure to comply
with the July 29, 2004 search of his cell. Prison regulations
require that a hearing must be provided within thirty days of
such a notice. While the notice is pending, certain privileges
are revoked; for example, a prisoner may not file a request to
transfer to another prison.
6870 HARVEY v. JORDAN
On January 3, 2005, Harvey filed a grievance complaining
that five months had passed and he still had not been given
a disciplinary hearing. He alleged that the delay violated his
right to due process, and that the videotape of his cell extrac-
tion would prove that the disciplinary charges were
unfounded. He wrote, “I request that I be given a hearing with
the requested video tape to prove my innocence. If no hearing
is given I request that this 115 be dropped and my status be
given back.” Prison officials granted Harvey’s first request in
a decision dated February 23, 2005. The decision stated that
he would be given a hearing and access to the videotape, and
informed him that he could appeal within fifteen working
days if he was “not satisfied” with that resolution.
Harvey was satisfied, however, and therefore did not
appeal. Only on August 28, 2005, after five months had
passed without prison officials providing a hearing or access
to the videotape, did Harvey use the appeal form to complain
that he had not received the promised relief. He wrote, “I was
suppose [sic] to receive an incident packet along with the
video tape. I haven’t gotten that or had a hearing . . . . . I
would like this 115 heard . . . .”
Although Harvey’s “reminder” grievance cannot reason-
ably be construed as an appeal of the decision granting him
a hearing, the prison appeals coordinator treated it as such.
The grievance was returned to Harvey with a rejection form
that stated, “This appeal was delivered on 3/18/05. We got it
back on 8/29/05. That’s well over 15 days; this appeal is can-
celled.” The form also stated, “This screening action may not
be appealed. If you allege the above reason is inaccurate, then
attach an explanation . . . . [and] return this form to the
Appeals Coordinator with the necessary information.”
[6] Defendants argue that Harvey should have appealed the
February 23, 2005 decision granting him a hearing and access
to the videotape. There is no merit to that argument. An
inmate has no obligation to appeal from a grant of relief, or
HARVEY v. JORDAN 6871
a partial grant that satisfies him, in order to exhaust his
administrative remedies. Nor is it the prisoner’s responsibility
to ensure that prison officials actually provide the relief that
they have promised. See Abney v. McGinnis, 380 F.3d 663,
669 (2d Cir. 2004) (“A prisoner who has not received prom-
ised relief is not required to file a new grievance where doing
so may result in a never-ending cycle of exhaustion.”).
[7] That Harvey initially requested alternative forms of
relief does not change our analysis. Once the prison officials
purported to grant relief with which he was satisfied, his
exhaustion obligation ended. His complaint had been
resolved, or so he was led to believe, and he was not required
to appeal the favorable decision. Were we to reach the con-
trary conclusion, any prisoner who expressed his willingness
to accept more than one form of relief — demonstrating a
flexibility that increases the likelihood of an outcome satisfac-
tory to both the prisoner and the prison officials — would
have no recourse when prison officials purported to grant one
of those alternative forms of relief, but then failed to imple-
ment their decision.
[8] Defendants also argue that Harvey should have
appealed the decision rejecting his “reminder” grievance as
untimely. Even if we were to agree that a prisoner has an obli-
gation to appeal the rejection of a grievance that he had no
obligation to file, we would still reject defendants’ argument.
There is no obligation to appeal from a decision when the
rejection form states that the “action may not be appealed.”
See Marella, 568 F.3d at 1027. This rule is no different when
the “no appeal” statement is followed by language inviting the
complainant to state in what manner the reason for the rejec-
tion is “inaccurate.” Id. In any event, Harvey did not dispute
that he had filed the form more than fifteen days after the
original decision in his favor or contend that any of the facts
in the rejection form were incorrect. Accordingly, he had no
basis for asserting that the prison officials’ reason for reject-
ing the form was “inaccurate.”
6872 HARVEY v. JORDAN
[9] In sum, we hold that Harvey exhausted the administra-
tive process when the prison officials purported to grant relief
that resolved his due process grievance to his satisfaction.
Accordingly, we reverse the district court’s dismissal of his
due process claim for failure to exhaust administrative reme-
dies.
CONCLUSION
For the foregoing reasons, we affirm the district court’s dis-
missal of Harvey’s excessive force claim, reverse the dis-
missal of his due process claim, and remand for further
proceedings consistent with this opinion. Harvey shall recover
his costs on appeal from defendants, except defendant Caden.
AFFIRMED in part, REVERSED in part, and
REMANDED.