United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1, 2009 Decided August 4, 2009
No. 08-7046
ISMAIL ABDUL MALIK, ALSO KNOWN AS ROY THOMAS,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01374-RMC)
David J. Shaw, Student Counsel, argued the cause for
amicus curiae in support of appellant. With him on the briefs
were Steven H. Goldblatt, appointed by the court, Cecily E.
Baskir, Supervising Attorney, and Rupal M. Doshi, Student
Counsel.
Lori L. Voepel argued the cause for appellees. With her on
the brief were Daniel P. Struck, Paul J. Maloney, and William
J. Carter. Mariana del Valle Bravo entered an appearance.
Before: GARLAND, BROWN, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Pro se appellant Ismail Malik, a
District of Columbia prisoner, sued the District of Columbia, the
Corrections Corporation of America (CCA), and TransCor
America, alleging that the defendants violated his rights under
the Eighth Amendment. The district court granted summary
judgment in favor of the District and CCA on the ground that
Malik had failed to exhaust his administrative remedies, and in
favor of TransCor on the ground that Malik had failed to
respond to TransCor’s summary judgment motion. We reverse
the former decision because CCA and the District had no
administrative remedies for Malik to exhaust. We reverse the
latter because the pro se plaintiff was plainly and reasonably
confused over whether TransCor’s motion remained pending.
I
Malik is a District of Columbia prisoner. The District
contracted with CCA, a private company, to house District of
Columbia prisoners at CCA’s Northeast Ohio Correctional
Center and Central Arizona Detention Center. TransCor, a CCA
subsidiary, was responsible for transporting District inmates
between the two CCA facilities. See Malik v. District of
Columbia (Malik II), 538 F. Supp. 2d 50, 51 (D.D.C. 2008).
From July 2 through July 4, 2001, TransCor transported
Malik (and other D.C. prisoners) on a forty-hour bus ride from
CCA’s Ohio facility to its facility in central Arizona. Malik
contends that he was handcuffed at the waist with a belly chain,
that the belly chain was attached to the chain of another inmate,
and that all of the prisoners wore leg shackles. Those restraints
made it impossible to use a restroom, forcing the prisoners to
urinate and defecate on themselves. The restraints also
precluded Malik from using an inhaler that he needed because
3
he was asthmatic. Malik further alleges that he was deprived of
water during the trip. See id.; Compl. at J.A. 16-17; Letter from
I. Malik to TransCor (July 27, 2001) (J.A. 178-79); Appellees’
Br. 23.1
After arriving at the CCA facility in Arizona, Malik filed a
grievance on July 12, 2001, requesting the address and
telephone number of the CCA main office in order to pursue a
civil action. J.A. 74. On July 18, CCA compliance coordinators
responded, advising Malik as follows: “Transcor, not [CCA]
staff, provided the transportation. This issue is out of this
facilit[y’s] control. . . . We are unable to further process your
grievance . . . .” Memorandum from M. Sherman & C. Richey
(July 18, 2001) (J.A. 75). The response gave Malik a name and
address at TransCor and told him that he could send a complaint
there. Id.
Thereafter, Malik filed two additional grievance forms
requesting paperwork to file an administrative appeal. J.A. 78,
80. On July 27, Malik submitted an appeal to CCA, see J.A. 76,
and on the same day sent TransCor a letter asking the company
to process his grievance, see J.A. 178-79.2 On August 14, 2001,
the CCA warden/administrator responded to Malik’s appeal,
instructing Malik “to write to Transcor to file your grievance[;]
CCA did not transport you.” J.A. 76.
1
Because the district court granted summary judgment against
Malik, we “must view the evidence in the light most favorable” to
him. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
2
TransCor states that it did not receive Malik’s letter. Appellees’
Br. 9. The district court found that this dispute raised a genuine issue
of material fact. Malik v. District of Columbia, 512 F. Supp. 2d 28, 32
(D.D.C. 2007); see infra note 3.
4
On July 11, 2005, Malik brought suit against the District of
Columbia, CCA, and TransCor in the United States District
Court for the District of Columbia. His pro se complaint, filed
pursuant to 42 U.S.C. § 1983, alleged that the defendants
subjected him to cruel and unusual punishment during the forty-
hour bus trip in violation of the Eighth Amendment. He also
alleged that transporting officers said they were punishing him
and the other prisoners because they had been members of a
class action lawsuit against the District and CCA. Compl. at
J.A. 18-19.
On February 12, 2007, the defendants filed a “Motion for
Judgment on the Pleadings or, in the Alternative, for Summary
Judgment,” contending that Malik had failed to exhaust his
administrative remedies as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e. Malik responded to
the motion on March 30. On August 1, the defendants filed a
second summary judgment motion, arguing on the merits that
Malik had failed to establish any genuine issue of material fact
that would allow him to demonstrate the elements of a claim
under 42 U.S.C. § 1983. On August 24, 2007, Malik filed a
motion for extension of time to reply to the second summary
judgment motion, which the district court granted in part on
September 5, giving Malik until September 25, 2007, to file his
opposition.
On September 6, 2007 -- the day after the district court
granted Malik’s motion for an extension of time to reply to the
second summary judgment motion -- the court issued an opinion
granting the first summary judgment motion as to the District of
Columbia and CCA only. The court granted the motion on the
ground that Malik had failed to properly exhaust his
administrative remedies by filing his first grievance one day
later than CCA’s grievance policy permitted. Malik v. District
of Columbia (Malik I), 512 F. Supp. 2d 28 (D.D.C. 2007). The
5
court declined to grant summary judgment for TransCor on that
ground, however, because the record showed there was a
genuine issue of material fact as to whether Malik had sent a
timely complaint letter to TransCor. Id. at 32; see FED. R. CIV.
P. 56(c) (providing that summary judgment should be granted
only if “there is no genuine issue as to any material fact”).
On September 20, Malik filed a “Motion in Opposition to
Defendant’s Motion to Dismiss.” The pleading evidenced
Malik’s confusion about the scope of the district court’s
September 6 opinion. Malik asked the district court to
“reconsider its order of September 6, 2007,” stating that the
September 6 order came “19 days before a response [was] due,”
and objecting that “it appears the Court has decided the motions
without awaiting a response from the Plaintiff.” Pl.’s Mot. in
Opp’n to Def.’s Mot. to Dismiss ¶¶ 4-6. Malik’s pleading
mentioned only the exhaustion issue raised in the first summary
judgment motion; it did not mention any issue raised in the
second.
TransCor filed four responses to Malik’s September 20
pleading, including an opposition to Malik’s request to
reconsider the September 6 order. Malik responded to that
opposition on October 23, 2007, again evidencing confusion
about the import of the district court’s September 6 opinion. He
stated: “[N]otwithstanding the . . . extension of time, the court,
on September 6, 2007, granted the defendants’ motions in part
and denied them in part. At any rate, the order was entered 19
days before a response was due.” Pl.’s Reply to Def.’s Opp’n to
Pl.’s Mot. to Reconsider the Court’s Sept. 6, 2007 Order ¶ 4. He
also charged that “[t]he court erred in entering an order of
whatsoever type, nature, and kind before September 25, 2007,”
and that the court’s September 6 opinion was “premature in
every respect.” Id. ¶ 5.
6
On March 10, 2008, the district court granted TransCor’s
second summary judgment motion, treating the motion as
conceded because Malik had failed to respond. Malik II, 538 F.
Supp. 2d at 53. Malik filed a timely appeal, and a special panel
of this court appointed amicus curiae to present arguments in
support of his position. Order, Malik v. District of Columbia,
No. 08-7046 (D.C. Cir. Oct. 14, 2008). We review the district
court’s grant of summary judgment de novo. See Aliron Int’l,
Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C.
Cir. 2008).
II
We begin with the district court’s grant of the defendants’
first summary judgment motion in favor of the District of
Columbia and CCA. The court granted the motion on the
ground that Malik had failed to exhaust his administrative
remedies.
The exhaustion provision of the PLRA provides as follows:
“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.” 42 U.S.C. § 1997e(a). The PLRA requires “proper
exhaustion,” which includes “compliance with an agency’s
deadlines and other critical procedural rules.” Woodford v. Ngo,
548 U.S. 81, 90 (2006).
Both CCA and the District rely on CCA’s grievance policy
to argue that Malik did not properly exhaust his administrative
remedies. The CCA policy requires that grievances be filed
within seven days of the incident being grieved. Richey Aff.
¶ 5. The bus trip about which Malik complained ended on July
4, 2001, but he did not file his first grievance until July 12 --
7
eight rather than seven days after the transfer. As a
consequence, the defendants maintain that Malik failed to
properly exhaust his administrative remedies.
The problem with this argument is that the same CCA
grievance policy renders a complaint like Malik’s nongrievable.
Under the policy, “‘grievable matters’ include[] issues regarding
the application of policies, rules and procedures; individual staff
and inmate actions, including any denial of access to the
grievance procedure; reprisals and retaliation against inmates for
filing an appeal; loss of property; and any other matter relating
to the conditions of care and supervision within the authority of
CCA.” Id. ¶ 6. But the policy also provides that “[i]nstitutional
transfers . . . are not grievable matters.” Malik I, 512 F. Supp.
2d at 30 (emphasis added); see Richey Aff. ¶ 6. In its briefs and
at oral argument, CCA conceded what is apparent on the face of
its policy: claims related to institutional transfers are not
grievable. Appellees’ Br. 26; Oral Arg. Recording at 11:40-
12:15. Nonetheless, the district court concluded that “[t]he
untimely filing of an inmate grievance alone supports the
conclusion that Plaintiff failed to properly exhaust his
administrative remedies.” Malik I, 512 F. Supp. 2d at 32.
Although the PLRA requires prisoners to exhaust their
administrative remedies before suing under § 1983, it reasonably
requires exhaustion only of “such administrative remedies as are
available.” 42 U.S.C. § 1997e(a). As we have previously held,
the Act’s exhaustion requirement does not apply in a case “in
which there is no administrative process to exhaust.”
Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C. Cir. 2008). In
such a case, “the PLRA does not prevent the prisoner from
bringing his or her claim directly to the district court.” Id.
Accordingly, the fact that Malik filed his grievance one day later
than CCA policy permits is irrelevant because Malik was not
required to file a grievance at all.
8
While the defendants concede that Malik’s Eighth
Amendment claim regarding the conditions of his transport was
not grievable, they contend that his complaint also included a
retaliation claim -- which they maintain was grievable under
CCA’s policy. See Appellees’ Br. 27; Richey Aff. ¶ 6 (stating
that “‘grievable matters’ included . . . reprisals and retaliation
against inmates for filing an appeal.”). Even if defendants’
characterization of Malik’s complaint and CCA’s policy were
correct, that would not get them all the way home. When a
complaint contains both exhausted and unexhausted claims, a
court may dismiss only the latter. See Jones v. Bock, 549 U.S.
199, 219-21, 224 (2007). But it is not obvious that defendants
have correctly construed either the complaint or the policy.
Amicus contends that Malik’s complaint should be read as
asserting only an Eighth Amendment claim, with retaliation
alleged merely as one motive -- not an unreasonable reading of
the pro se complaint. Moreover, even if we were to construe the
complaint as setting out a separate claim for retaliation, it is not
evident that such a claim would have been covered by CCA’s
policy. The policy simply does not make clear the status of a
claim for reprisal (a covered subject) that took place during an
institutional transfer (a non-covered event). The parties
submitted no evidence on this issue, the district court made no
finding, and this court is an inappropriate place to make such an
argument for the first time.
III
As we have noted, the district court denied the defendants’
first motion for summary judgment as to TransCor because it
found there was a genuine dispute as to whether Malik had
properly exhausted his administrative remedies under
TransCor’s grievance policy. The court granted the defendants’
second summary judgment motion as to TransCor (the only
defendant remaining at the time), however, on the ground that
9
Malik had conceded it. Malik II, 538 F. Supp. 2d at 52-53. In
so holding, the court relied on Local Civil Rule 7(b), which
provides that if an opposing party does not file an opposition to
a summary judgment motion, “the Court may treat the motion as
conceded.” D.D.C. LOCAL RULE 7(b). We review the district
court’s application of Rule 7(b) for abuse of discretion. See Fox
v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004);
F.D.I.C. v. Bender, 127 F.3d 58, 67 (D.C. Cir. 1997).
In Fox v. Strickland, we reversed an order of a district court
dismissing the complaint of an incarcerated pro se plaintiff who
had failed to file an opposition to a defendant’s summary
judgment motion. “‘[A]s a bare minimum,’” we said, reiterating
circuit precedent, “the district court should give the pro se
imprisoned plaintiff ‘fair notice of the requirements of the
summary judgment rule.’” Fox v. Strickland, 837 F.2d 507, 509
(D.C. Cir. 1988) (quoting Ham v. Smith, 653 F.2d 628, 630
(D.C. Cir. 1981)). “That notice . . . should include an
explanation that the failure to respond to an adverse party’s
summary judgment motion may result in the district court
granting the motion and dismissing the case.” Id.; see Ham, 653
F.2d at 630 (same); Hudson v. Hardy, 412 F.2d 1091, 1094
(D.C. Cir. 1968) (same).
In its March 10, 2008, opinion granting the defendants’
second motion for summary judgment as to TransCor, the
district court observed that “[o]rdinarily [it] issues an Order to
a pro se litigant to advise him of his obligation to file an
opposition or other response to a summary judgment motion, to
warn him of the potential consequences for his failure to do so,
and to set a deadline for such filing.” Malik II, 538 F. Supp. 2d
at 53 n.2. As the court also acknowledged, “[t]he record shows
that [it] did not issue such an order in this case.” Id.
Nonetheless, the court concluded that no order was required
because it had advised Malik of his obligations in February,
10
when the defendants filed their first summary judgment motion,
and because Malik had been a plaintiff in other civil actions in
the district court. Id.
But the problem here is not simply that Malik lacked notice
that he had to respond to TransCor’s summary judgment motion.
Rather, it is that he erroneously thought the district court had
granted both the first (February) and second (August) motions
on September 6 -- before his response to the second motion was
due. This is apparent from Malik’s filings. On September 5, the
district court granted him an extension until September 25 to
reply to the second motion for summary judgment. One day
later, on September 6, the court granted the defendants’ first
motion. In his filing on September 20, Malik objected that “it
appears the Court has decided the motions without awaiting a
response from the Plaintiff,” and that it did so “19 days before
a response [was] due.” Pl.’s Mot. in Opp’n to Def.’s Mot. to
Dismiss ¶¶ 4-5 (emphasis added). In his filing of October 23,
Malik registered the same objection:
In an order dated September 5, 2007, the court granted
the plaintiff an extension of time until September 25,
2007, to file an opposition to the defendants’ motions.
However, notwithstanding the foregoing extension of
time, the court, on September 6, 2007, granted the
defendants’ motions in part and denied them in part.
At any rate, the order was entered 19 days before a
response was due.
Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Reconsider ¶ 4.
“The court erred,” Malik declared, “in entering an order of
whatsoever type, nature, and kind before September 25, 2007.”
Id. at ¶ 5. In his view, this rendered the September 6, 2007,
opinion “premature in every respect.” Id.
11
Malik’s confusion was not unfounded, given the
complicated sequence of motions and orders set forth in Part I
above. The defendants insist that Malik should have known that
the district court’s September 6 decision granted only their
February motion because “the court’s decision addressed only
the exhaustion issues, which were raised solely in the [February]
Motion for Judgment on the Pleadings.” Appellee’s Br. 10.
Because the defendants’ August motion was a “Motion for
Summary Judgment” and not for “Judgment on the Pleadings,”
defendants maintain that Malik should have realized that the
September 6 decision -- which assertedly ruled “only on the
Motion for Judgment on the Pleadings” -- did not resolve it. Id.
at 36.
The flaw in this argument is that the full title of the
defendants’ February motion was “Motion for Judgment on the
Pleadings or, in the Alternative, for Summary Judgment.”
Moreover, the court’s September 6 Memorandum Opinion only
discussed the standard for “summary judgment”; it did not
address the standard for granting judgment on the pleadings.
See Malik I, 512 F. Supp. 2d at 29. Thus, there was nothing in
the distinction between summary judgment and judgment on the
pleadings to dispel the confusion exhibited by the plaintiff.
In light of both the objectively confusing procedural history
and the subjective confusion that Malik plainly manifested, “it
was incumbent upon the district court . . . to inform [Malik] of
the pendency of the defendants’ motion and to accord him an
‘explanation of the risks attending failure to respond.’” Fox,
837 F. 2d at 509 (quoting Ham, 653 F.2d at 630). Such
clarification would have imposed little burden on the litigation,
but it would have constituted the “fair notice” that Fox requires.
Id. “[B]ecause the district court dismissed [Malik’s] complaint
without providing him” the requisite notice, we reverse “the
12
dismissal order and remand the case to the district court for
further proceedings.” Id.3
IV
For the foregoing reasons, we reverse the district court’s
grants of summary judgment and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
3
TransCor urges that if we find, as we have, “that the district
court erred in granting summary judgment on the ground that Malik
conceded Defendants’ Motion on the merits,” we should nonetheless
affirm on the ground that Malik failed to exhaust his administrative
remedies under TransCor’s grievance policy. Appellees’ Br. 15.
Although the district court found that TransCor did have an informal
grievance policy applicable to complaints concerning conditions of
transport, it also determined that there was a genuine issue of material
fact as to whether Malik sent TransCor a complaint letter in
compliance with that policy. Malik I, 512 F. Supp. 2d at 32.
TransCor asserts that Malik’s claim to have mailed the letter was not
credible, but such an assertion generally provides no warrant for
reversing the denial of summary judgment by a district court. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(noting that, in ruling on a motion for summary judgment, the court
“may not make credibility determinations or weigh the evidence”);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (same).