FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVIN MAURICE RHODES,
Plaintiff-Appellant,
v.
M. ROBINSON; RON BLEVINS; SARA
MALONE; R&R OFFICER; R&R No. 08-16363
SERGEANT; OMBUDSMAN; C.
NELSON; CORRECTIONAL OFFICER; V. DC No.
CV 02-5018
PAZO, Correctional Officer; B.
OPINION
JONES, Sergeant; ROBERTSON,
Sergeant; J. TIDWELL, Correctional
Officer; A. LOPEZ, Facility
Captain; HUEBNER, Lieutenant,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted June 15, 2010*
San Francisco, California
Filed September 8, 2010
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tashima
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
13667
RHODES v. ROBINSON 13669
COUNSEL
Kavin M. Rhodes, Kern Valley State Prison, Delano, Califor-
nia, the plaintiff-appellant pro se.
John W. Riches II, Deputy Attorney General, Sacramento, C
California, for the defendants-appellees.
13670 RHODES v. ROBINSON
OPINION
TASHIMA, Circuit Judge:
The district court sua sponte dismissed claims thirteen
through thirty-three of prisoner Kavin Rhodes’ (“Rhodes”)
second amended complaint (“SAC”), holding that they had
not been exhausted, as required by the Prison Litigation
Reform Act of 1995 (“PLRA”), which states “[n]o action
shall be brought with respect to prison conditions under [42
U.S.C. § 1983], or any other Federal law, by a prisoner con-
fined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
See 42 U.S.C. § 1997e(a). We reverse, holding that the claims
were sufficiently alleged to survive sua sponte dismissal
under the PLRA.
Background
Rhodes is a prisoner in the California prison system who
has filed numerous administrative grievances about the treat-
ment he received from guards while in custody at the Califor-
nia Correctional Institution at Tehachapi (“CCI”). On
December 26, 2001, Rhodes initiated this lawsuit under 42
U.S.C. § 1983, by placing his original complaint in the prison
mail system. He alleged that prison guards at CCI had vio-
lated his civil rights by retaliating against him for exercising
his First Amendment right to pursue the prison grievance pro-
cess against them. The complaint was officially filed with the
district court on January 4, 2002.
Defendants filed a motion to dismiss Rhodes’ claims,
which the district court granted. We reversed on appeal. See
Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). On remand
to the district court, Rhodes filed his SAC on March 20, 2006,
which added claims thirteen through thirty-three. These
claims allege that the same defendant guards perpetrated new
retaliatory acts against Rhodes between January 2, 2002, and
RHODES v. ROBINSON 13671
November 15, 2003, in response to his initiating this lawsuit.
Rhodes’ SAC was filed on a form for pro se prisoner-
litigants. He checked boxes on the form that stated, and
thereby alleged, that he had completed the grievance process
available at CCI concerning the facts relating to the new
claims alleged in the SAC. Nothing in his SAC, or any docu-
ments attached to it, controverted that allegation.
The PLRA incorporates a screening procedure, which pro-
vides that the “court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a com-
plaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmen-
tal entity.” 28 U.S.C. § 1915A(a). Upon review, the court may
dismiss the complaint, or any portion of it, if it “is frivolous,
malicious, or fails to state a claim upon which relief may be
granted.” See 28 U.S.C. § 1915A(b)(1). Defendants suggested
that the district court screen the SAC in order to “determine
whether Plaintiff failed to satisfy the mandatory precondition
to bringing suit in federal court, to wit: exhaustion of any
available administrative remedies before challenging prison
conditions in federal court.”
The district court sua sponte dismissed claims thirteen
through thirty-three for failure to exhaust under § 1997e. It
interpreted our decision in McKinney v. Carey, 311 F.3d
1198, 1199-1201 (9th Cir. 2002) (per curiam), as requiring
that claim exhaustion must occur prior to the filing of the
original complaint. It then held that Rhodes had failed prop-
erly to exhaust claims thirteen through thirty-three, reasoning
that because they arose from events occurring between Janu-
ary 2, 2002, and November 15, 2003, “any exhaustion of
these claims necessarily occurred after the filing of this
action,” on January 4, 2002.
Rhodes timely appeals.1 The district court had jurisdiction
1
In addition to the exhaustion issue discussed in this opinion, Rhodes
has also raised a host of other contentions on appeal. We address all of
those other issues, and affirm the district court, in a memorandum disposi-
tion filed concurrently with this opinion.
13672 RHODES v. ROBINSON
pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction
under 28 U.S.C. § 1291. We review the district court’s legal
conclusions de novo. See Wyatt v. Terhune, 315 F.3d 1108,
1117 (9th Cir. 2003).
Analysis
The district court erred in dismissing the additional claims
set forth in Rhodes’ SAC for failure to exhaust under § 1997e.
The district court reasoned that the PLRA’s exhaustion
requirement bars amended complaints from asserting new
claims based on conduct that occurred after the initial com-
plaint was “brought,” even when the prisoner has exhausted
the administrative remedies available to address this new con-
duct before filing the amended complaint. In doing so, the dis-
trict court relied on our opinion in McKinney. More recently,
we interpreted the PLRA’s exhaustion requirement in Vaden
v. Summerhill, 449 F.3d 1047 (9th Cir. 2006). Neither of these
cases, however, addresses the circumstance of the case at
bench, in which a prisoner is filing an amended complaint
based on new conduct. Nor do they support the dismissal of
claims thirteen through thirty-three, which were newly added
in Rhodes’ SAC.
[1] McKinney held that the PLRA’s exhaustion require-
ment does not allow a prisoner to file a complaint addressing
non-exhausted claims, even if the prisoner exhausts his
administrative remedies while his case is pending. See 311
F.3d at 1199. Vaden held that a prisoner must exhaust his
administrative remedies before he tenders his complaint to the
district court. See 449 F.3d at 1050. Vaden also held that the
claims which are exhausted after the complaint has been ten-
dered to the district court, but before the district court grants
him permission to proceed in forma pauperis and files his
complaint, must be dismissed pursuant to § 1997e. See id. at
1050-51. Together, these cases stand for the proposition that
a prisoner must exhaust his administrative remedies for the
RHODES v. ROBINSON 13673
claims contained within his complaint before that complaint
is tendered to the district court.
Neither McKinney’s holding that exhaustion is a prerequi-
site to suit (as opposed to merely a prerequisite to judgment),
nor Vaden’s holding that a case is “brought” within the mean-
ing of § 1997e at the time it is tendered to the district court
(as opposed to the time it is filed by the clerk), requires the
dismissal of the newly-alleged claims in Rhodes’ SAC.
Rather, they support Rhodes’ argument that the new claims in
his SAC should not have been dismissed, because they were
properly exhausted before he tendered his SAC to the district
court for filing.
[2] Both McKinney and Vaden must be read and applied in
the larger context of the pleading framework established by
the Federal Rules of Civil Procedure. As a general rule, when
a plaintiff files an amended complaint, “[t]he amended com-
plaint supercedes the original, the latter being treated thereaf-
ter as non-existent.” Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
1976). Nothing in the PLRA’s exhaustion requirement creates
an exception to this basic premise of our jurisprudence on
pleadings.
As the Supreme Court has admonished, “courts should gen-
erally not depart from the usual practice under the Federal
Rules on the basis of perceived policy concerns” when inter-
preting the PLRA. Jones v. Bock, 549 U.S. 199, 212 (2007).
In drafting the PLRA, “when Congress meant to depart from
the usual procedural requirements, it did so expressly.” Id. at
216. Addressing an exhaustion issue related to, but not
directly controlling, the case at bench, the Court held that the
PLRA “does not — explicitly or implicitly — justify deviat-
ing from the usual procedural practice beyond the departures
specified by the PLRA itself.” Id. at 214.
In Jones, the Supreme Court struck down a Sixth Circuit
decision requiring prisoners to plead exhaustion or face dis-
13674 RHODES v. ROBINSON
missal during the district court’s PLRA screening process,
holding that the circuit’s decision imposed an impermissible
judicially-created heightened pleading requirement. In doing
so, it reasoned that “[t]here is . . . no reason to suppose that
the normal pleading rules have to be altered to facilitate” the
PLRA’s screening and exhaustion requirements. Id.
[3] In these circumstances, the new claims in Rhodes’
SAC were “brought” within the meaning of § 1997e on March
20, 2006, when he tendered that complaint for filing with his
motion for leave to file an amended complaint. The SAC
alleged that, at the time of filing, all of the claims within it
had been properly exhausted. Defendants’ argument that the
PLRA requires the newly-added claims in the SAC to have
been exhausted before the original complaint was “brought”
on January 4, 2002, fails because it ignores the general rule
of pleading that the SAC completely supercedes any earlier
complaint, rendering the original complaint non-existent and,
thus, its filing date irrelevant.
The Seventh Circuit addressed the same issue of the
PLRA’s treatment of amended complaints in a slightly differ-
ent, but closely analogous, context. Its holding in Barnes v.
Briley, 420 F.3d 673 (7th Cir. 2005), supports reversing the
district court’s dismissal of claims thirteen through thirty-
three. In Barnes, an inmate brought an action under the Fed-
eral Tort Claims Act (“FTCA”) in October of 2000. Id. at 675.
In August 2003, in light of subsequent factual developments
in his case, the inmate moved to file a second amended com-
plaint dismissing his FTCA claims against the original defen-
dant and adding new claims under § 1983, governed by the
PLRA, against new defendants. Id. at 676.
“The defendants moved to dismiss the suit on the basis that
[the prisoner-plaintiff] had failed to exhaust the prison griev-
ance process related to the incidents underlying his § 1983
claims before filing his original complaint,” although he had
exhausted the claims by the time he moved to file his second
RHODES v. ROBINSON 13675
amended complaint and tendered it to the court. Id. The dis-
trict court granted the motion to dismiss, holding that the
additional claims in the second amended complaint were
barred by § 1997e because they had not been exhausted prior
to the date that the original complaint was brought. Id.
The Seventh Circuit reversed, holding that the prisoner had
“complied with the purpose and letter of the PLRA.” Id. at
678. He fulfilled the purpose of the PLRA because he
exhausted all of the remedies available to him through the
prison grievance process, therefore “afford[ing] those defen-
dants the opportunity to address his grievances before he filed
suit against them.” Id. He followed the letter of the PLRA
because he:
filed his original complaint alleging properly
exhausted claims . . . under the FTCA. After an
investigation by his newly appointed counsel
revealed that the circumstances underlying his origi-
nal complaint supported different claims against dif-
ferent defendants, [plaintiff] initiated the prison
grievance process, as required by the PLRA. Once
he had exhausted those administrative remedies,
[plaintiff] dismissed his FTCA claims and, with the
district court’s leave, substituted his § 1983 claims
against the . . . defendants. It is evident, therefore,
that [the plaintiff] did not attempt to replead improp-
erly exhausted claims in his amended complaint.
Rather, he asserted properly exhausted FTCA claims
in his original complaint, and later he raised new,
properly exhausted § 1983 claims against new defen-
dants.
Id. (footnote omitted). The Seventh Circuit observed that “the
rationale of the district court demanded that [plaintiff] shoul-
der an impossible task — to exhaust remedies not yet perti-
nent to the allegations of the filed complaint.” Id.
13676 RHODES v. ROBINSON
[4] As in Barnes, Rhodes asserted properly exhausted
claims in his original complaint and later raised new, properly
exhausted, claims in his SAC. The fact that both of Rhodes’
complaints were § 1983 claims against the same group of
defendants does not affect the applicability of Barnes to this
case. We agree with the Seventh Circuit that “[t]he filing of
the amended complaint was the functional equivalent of filing
a new complaint . . . and it was only at that time that it
became necessary to have exhausted all of the administrative
remedies” perquisite to bringing the new claims in the
amended complaint. Id.
[5] Moreover, Rhodes’ SAC was, in fact, a supplemental
complaint, regardless of the label attached to it by the pro se
prisoner-plaintiff, permitted under Federal Rule of Civil Pro-
cedure 15(d) because claims thirteen through thirty-three
arose after the initial complaint was filed. See Fed. R. Civ. P.
15(d); Griffin v. County Sch. Bd., 377 U.S. 218, 227 (1964)
(“Rule 15(d) . . . plainly permits supplemental amendments to
cover events happening after suit . . . .”); William Inglis &
Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014,
1057 (9th Cir. 1982) (“The purpose of Rule 15(d) is to pro-
mote as complete an adjudication of the dispute between the
parties as possible by allowing the addition of claims which
arise after the initial pleadings are filed.”). Rhodes’ SAC fits
precisely within the language and purpose of Rule 15(d) as a
supplemental pleading based on facts that occurred after the
filing of the original complaint. The district court’s interpreta-
tion of the PLRA’s exhaustion requirement — and McKinney
— necessarily implies that Rule 15(d) and supplemental
pleadings do not apply to actions under the PLRA. A supple-
mental complaint alleging new, and newly-exhausted, claims
could never be filed in a PLRA action. Congress has never
indicated, however, that it intended to do away with Rule
15(d) and supplemental pleadings in PLRA actions. And, as
we have noted, the Court has expressly reminded us that
“when Congress meant to depart from the usual procedural
requirement, it did so expressly.” Jones, 549 U.S. at 216.
RHODES v. ROBINSON 13677
We hold that the district court erred when it dismissed
claims thirteen through thirty-three of Rhodes’ SAC under
§ 1997e. This result is necessary to harmonize the PLRA with
the requirements of the Federal Rules of Civil Procedure, as
the Supreme Court has instructed; it is also consistent with
our holdings in Vaden and McKinney.
Conclusion
[6] The PLRA’s exhaustion requirement is satisfied so
long as Rhodes exhausted his administrative remedies with
respect to the new claims asserted in his SAC before he ten-
dered that complaint to the court for filing. Rhodes’ SAC
alleges that he did this, and there is nothing in the record to
the contrary. The district court therefore erred in dismissing
claims thirteen through thirty-three as unexhausted under the
PLRA.
This is not to say defendants cannot question on remand the
veracity of Rhodes’ allegations of exhaustion. We make no
finding that the claims have, in fact, been exhausted.
[7] For the foregoing reasons, the portion of the district
court’s order dismissing claims thirteen through thirty-three
of the SAC is reversed and the case remanded to the district
court for further proceedings. Each party shall bear his own
costs on appeal.
REVERSED in part and REMANDED.